Amicus Curiae Brief — Borden v. School School District District of the Township of East Brunswick, New Jersey (No. 08-482)

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NOV _1 4 2008

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In The

Supreme Court of the Anited States

MARCUS A. BORDEN,

Petitioner,

SCHOOL DISTRICT OF THE TOWNSHIP OF

EAST BRUNSWICK, NEW JERSEY, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

BRIEF OF AMICI CURIAE SOUTHEASTERN

LEGAL FOUNDATION, DAVID HOROWITZ

FREEDOM CENTER, INDIVIDUAL RIGHTS

FOUNDATION, THE JUSTICE FOUNDATION,

AND ALLIANCE DEFENSE FUND

IN SUPPORT OF PETITIONER

EDWIN MEEsE II] SHANNON LEE GOESSLING

Of Counsel Counsel of Record

SOUTHEASTERN LEGAL SOUTHEASTERN LEGAL

FOUNDATION FOUNDATION

6100 Lake Forrest Drive, N.W. 6100 Lake Forrest Drive, N.W.

Suite 520 Suite 520

Atlanta, GA 30328 Atlanta, GA 30328

(404) 257-9667 (404) 257-9667

Counsel for Amici Curiae

Southeastern Legal Foundation, et al.

November 14, 2008

[List Of Amici Continues On Inside Cover]

COCKLE LAW BRIEF PRINTING CO 2.

OR CALL COLLECT 402) 342-2831

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIABE ..............2...2..4---

ISSUE PRESENTED

SUMMARY OF ARGUMENT

ARGUMENT

The Third Circuit failed to recognize the

sharp contrast between the pro-prayer pol-

icy found unconstitutional by the Court in

Santa Fe and East Brunswick School Dis-

trict’s facially neutral prayer policy, result-

ing in a holding contrary to this Court’s

precedent

The EBSD prayer policy was distin-

guishable from the Santa Fe pro-

prayer policy because EBSD promul-

gates a facially neutral prayer policy

that only addressed employee behav-

The Third Circuit failed to recognize

the protected private nature of the

students’ speech and incorrectly held

that Coach Borden’s demonstration of

respect for the students’ speech trans-

formed that speech into impermissible

government endorsement of relignon....

Il.

CONCLUSION

TABLE OF CONTENTS — Continued

Page

The Third Circuit failed to provide First

Amendment viewpoint protection to stu-

dent-initiated, student-led prayer, thereby

allowing EBSD’s policy to have the effect of

chilling constitutionally protected student

NE ass cee ees

The Court should clarify and unify the test

in school environment religious expression

cases by articulating and adopting a Coer-

cion test which allows passive and sym-

bolic conduct by government actors,

protects individual viewpoints, and does

not chill constitutionally protected stu-

dent-initiated and student-led prayer in a

WCTIOOE OUEVETWNTIIIINE, oon cesiss ssavoenesiesexaesnvandiess

A. The Court currently applies at least

three tests for adjudicating Estab-

lishment Clause cases like the in-

stant case, which leads to disparate

findings of constitutional protection

FE DEEREAE BID pn in cncsspesevinsinieseaceceees

B. The Court should articulate and adopt

a single test that does not implicate pas-

sive or symbolic government conduct

when determining an Establishment

Clause violation, yet affords constitu-

tional protection for private speech in a

public school environment

TABLE OF AUTHORITIES

CASES

Aguilar v. Felton, 473 U.S. 402 (1985)

Board of Educ. of Westside Cmty. Sch.

Mergens, 496 U.S. 226 (1990)

Borden v. Sch. Dist. of the Township of East

Brunswick, New Jersey, et al., 523 F.3d 153

(3d Cir. 2008) passim

Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753 (1995) 10, 16, 21

Chandler v. James, 180 F.3d 1254 (1lth Cir.

Chandler v. Siegelman, 230 F.3d 1313 (11th Cir.

ii, 32, 13

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993)

County of Allegheny v. ACLU, 492 U.S. 573

RETR pa gn es A ope elyae ST See PT ee 18, 20, 22, 24

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

Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1 (2004)

Good News Club v. Milford Cent. Sch., 533 U.S.

| | Ine RON IVa ets EO ae aOR a 3, 14

Hunt v. McNair, 413 U.S. 734 (19738) ....................08.. 20

Lamb's Chapel v. Center Moriches Union Free

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

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

TABLE OF AUTHORITIES -— Continued

Lemon v. Kurtzman, 403 U.S. 602 (1991)

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

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

Morse v. Frederick, 127 S. Ct. 2618 (2007)

Pope v. East Brunswick Bd. of Educ., 12 F.3d

oo caiencaccsnscnceversecensseresess 17

Rosenberger v. Rector & Visitors of the Univ. of

Va., 515 U.S. 819 (1995)

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

(2000) passim

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

EEE 13

Wallace v. Jaffree, 472 U.S. 38 (1985)

OTHER AUTHORITIES

Christal L. Hoo, Thou Shalt Not Publicly

Display the Ten Commandments: A Call for

a Reevaluation of Current Establishment

Clause Jurisprudence, 109 Penn St. L. Rev.

683 (2004)

James A. Campbell, Note: Newdow Calls for a

New Day in Establishment Clause Juris-

prudence: Justice Thomas’s “Actual Legal

Coercion” Standard Provides the Necessary

Renovation, 39 Akron L. Rev. 541 (2006) ............... 21

TABLE OF AUTHORITIES — Continued

Page

Leonard W. Levy, The Establishment Clause:

Religion and the First Amendment, 163

cicada cegneiten civicdiabevesdisnecriesverseesess 19

Michael W. McConnell, Exchange; Religious

Participation in Public Programs: Religious

Freedom at a Crossroads, 59 U. Chi. L. Rev.

oily Aaccegdeviivovsverevne efellewerctdctinsids 19, 22

INTEREST OF AMICI CURIAE

The entities participating in this brief share an

abiding interest in the fair and equitable application

of the Establishment Clause within First Amendment

jurisprudence. From a public interest perspective, the

entities assert that a fair application of the Estab-

lishment Clause does not include purging de minimis

signs of respect for constitutionally protected reli-

gious practices. The historical meaning of the First

Amendment does not contemplate prohibiting a

public official or employee from respectfully recogniz-

ing students’ private religious expression because

such a prohibition chills and demeans that constitu-

tionally protected expression.

Southeastern Legal Foundation, Inc. (“SLF”),

founded in 1976, is a national non-profit, public

interest law firm and policy center that advocates

constitutional individual liberties and free enterprise

in the courts of law and public opinion. SLF drafts

legislative models, educates the public on key policy

issues, and litigates regularly before the Supreme

Court of the United States.’

The Individual Rights Foundation (“IRF”) was

founded in 1993. It is the legal arm of the David

‘ Counsel of Record for the parties received timely notice of

Amici Curiae’s intent to file this brief and have provided written

consent to its filing. No counsel for a party authored the brief in

whole or in part nor made any monetary contribution intended

to fund the preparation or submission of the brief.

Horowitz Freedom Center (“DHFC”), a non-profit

501(c)(3) organization. The mission of DHFC is to

promote the core principles of free societies — and to

defend America’s free society — through educating the

public to preserve traditional constitutional values of

individual freedom, the rule of law, private property

and limited government. In support of this mission,

the IRF litigates cases and, together with the DHFC,

participates as amicus curiae in appellate cases, such

as the case at bar, that raise significant First

Amendment speech and Establishment Clause issues.

The Justice Foundation (formally the Texas

Justice Foundation) was founded in 1993 to protect

the fundamental freedoms and rights essential to the

preservation of American society. The Justice Foun-

dation represents clients free of charge in cases in the

areas of limited government, free markets, private

property, parental school choice, parental rights in

education, and enforcing laws to protect women’s

health. The Justice Foundation is a non-profit, public

interest litigation firm supported by tax-deductible

contributions.

Alliance Defense Fund (“ADF”) is a non-profit,

public interest organization devoted to the defense of

religious freedom. ADF pursues its goal of protecting

religious liberty by providing strategic planning,

training, and funding to attorneys and organizations

regarding religious civil liberties. ADF and its allied

organizations represent thousands of Americans who

desire to maintain their right to religious expression.

ADF has been directly or indirectly involved in at least

500 cases and legal matters, including numerous

religious expression cases before the United States

Supreme Court, including Good News Club v. Milford

Central Schools, 533 U.S. 98 (2001); and Boy Scouts

of America vu. Dale, 530 U.S. 640 (2000).

ISSUE PRESENTED

By holding that high school Coach Borden’s

secular gestures of respect offered at the time his

players initiated and led prayer in a non-public forum

violated the Establishment Clause, the Third Circuit

acted contrary to the rights of students, Coach Bor-

den’s duty to act in a neutral, non-hostile manner

toward the students once they chose to pray and this

Court’s precedent. The three opinions by the Third

Circuit exemplify the confusion that plagues the

lower courts and attorneys who must advise not only

school boards and administrators, but also parents

with children in our public school systems. The result

of this ongoing uncertainty is unpredictable litigation.

This Court’s jurisprudence and tests should provide

understandable precedent, resulting in clear adminis-

trative policies and processes within the public school

setting. Has the Third Circuit plurality’s confused

misapplication of this Court’s Establishment Clause

jurisprudence in a public school setting, as well as the

conflict between the Circuits identified by petitioner,

provided the sound basis for this Court to grant a

writ of certiorari to the petitioner?

SUMMARY OF ARGUMENT

Coach Borden’s demonstration of respect for

player-initiated and player-led prayer does not rise to

the level of an Establishment Clause violation. The

Third Circuit misapplied the Court’s holdings regard-

ing acceptable behavior by school districts involving

student-initiated, student-led private speech. The

Court in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290 (2000) detailed the amount of state entanglement

necessary to transform student speech into coercive

government speech bearing the school’s imprimatur.

None of these factors are present with the student

prayers occurring in the East Brunswick School

District. The players’ prayers are not transformed

from private speech into government speech because

of the presence of Coach Borden or by his secular

demonstration of respect.

Beyond the formalism of policies and attribution,

courts must also look to the effect school directives

have on students. If school districts promulgate

policies that effectively chill students’ constitutionally

protected speech, they engage in viewpoint discrimi-

nation. The East Brunswick School District, histori-

cally and through the current policy, creates an

environment hostile to religion. This atmosphere of

intolerance toward religious viewpoints violates not

only the Court’s Establishment Clause mandate of

religious neutrality, but also the broader First

Amendment mandate of protection against viewpoint

discrimination.

The Court’s Establishment Clause jurisprudence

is as confusing as it is voluminous. The different tests

the Court employs force lower courts and attorneys

into an inefficient “guessing game” as to the proper

course of analysis. Further, all of the Court’s current

approaches lack the neutrality toward religion de-

manded by the Constitution. The Court should grant

the petition for writ of certiorari in order to articulate

a single Coercion test that discounts passive and

symbolic government speech, while still barring

government coercion of religion. This test will provide

necessary guidance to the lower courts, protect all

viewpoints and remain faithful to the Clause’s true

meaning.

ARGUMENT

The Third Circuit failed to recognize the

sharp contrast between the pro-prayer pol-

icy found unconstitutional by the Court in

Santa Fe and East Brunswick School Dis-

trict’s facially neutral prayer policy, result-

ing in a holding contrary to this Court’s

precedent.

The lead opinion in Borden v. Sch. Dist. of the

Township of East Brunswick, New Jersey, et al., 523

F.3d 153, 175 (3d Cir. 2008), relied heavily on Santa

Fe, which the Third Circuit mghtly identified as the

“leading case” concerning prayer at high school

football games. But, the Third Circuit fundamentally

misinterpreted and misapplied this Court’s reasoning

for holding unconstitutional the prayers at issue in

Santa Fe. This Court laid out a litany of missteps the

Santa Fe School District (“SFSD”) committed in

adopting the religious speech at issue as its own,

therefore violating the Establishment Clause. Some

of the factors this Court identified only marginally

applied to the East Brunswick School District

(“EBSD” or “the District”) and, indeed, others were

polar opposite to the circumstances in Santa Fe. In

rejecting the SFSD’s claims, this Court noted: “The

delivery of [the prayers] — over the school’s public

address system, by a speaker representing the stu-

dent body, under the supervision of school faculty, and

pursuant to a school policy that explicitly and implic-

itly encourages public prayer — is not properly charac-

terized as ‘private’ speech.” 530 U.S. at 310. The

Third Circuit failed to acknowledge that the EBSD

policy limited its application to employees and did

nothing to further or encourage prayer by the stu-

dents.

A. The EBSD prayer policy was distin-

guishable from the Santa Fe pro-prayer

policy because EBSD promulgates a fa-

cially neutral prayer policy that only

addressed employee behavior.

The Third Circuit erroneously applied Santa Fe

by failing to recognize that, despite the fact that the

EBSD policy addresses only employee speech in the

prayer context, the policy nevertheless causes grave

harm to students’ ‘private’ speech (student-initiated,

student-led prayer) which would otherwise enjoy the

protections of the First Amendment. Analysis of an

alleged government Establishment Clause violation

must include the government’s official policy toward

the religious action involved and the effects of that

policy. The government’s policy and what government

officials say regarding that policy represents the

easiest and most straightforward way to discern the

government’s posture toward religion. This posture

must be completely neutral — neither hostile nor

overtly favoring — in order to withstand constitutional

scrutiny. Wallace v. Jaffree, 472 U.S. 38, 60 (1985)

(emphasis added). This Court found the SFSD vio-

lated the Establishment Clause by promulgating a

pro-prayer policy. 530 U.S. at 305. The Court consid-

ered at length how the SFSD “explicitly and implic-

itly encouraged prayer,” thereby conveying both a

“perceived and actual [government] endorsement” of

prayer. Jd. at 305, 310. The Court noted how the

SFSD policy “invites and encourages religious mes-

sages.” Id. at 306. The Court also expressed concern

about how the policy’s text produced only one clearly

preferred message — a religious message. Id. at 315.

The Court determined this governmental favoritism,

expressed through the school’s policy, was coercive in

nature and violated the constitutional mandate of

religious neutrality. /d. at 307-10.

The EBSD expresses no such governmental

favoritism toward student prayers. The Third Circuit

glossed over this key distinction in finding Coach

Borden’s actions constituted an Establishment Clause

violation. The EBSD’s policy in no way “explicitly or

implicitly” encourages student prayer. Unlike the

policy in Santa Fe, the EBSD’s policy is “hands off.”

Santa Fe, 530 U.S. at 305. The EBSD policy, while

conceding the players have a right to pray, relin-

quishes all editorial control to the players. The policy

consists of a list of actions in which school employees

shall not engage when the students pray, and the

consequences of any disobedience. Borden, 523 F.3d

at 160-61. The Court concluded in Santa Fe that the

purpose of the pro-prayer policy was to preserve a

popular “state sponsored religious practice.” 530 U.S.

at 309 (quoting Lee v. Weisman, 505 U.S. 577, 596

(1992)). The EBSD policy targets the exact opposite

goal: to dissolve completely any association the Dis-

trict has with a religious practice. The Third Circuit,

while it acknowledged the pro-prayer policies in

Santa Fe, failed to recognize the stark contrast with

the EBSD policy. The SFSD’s pro-prayer policy, and

the atmosphere it created, formed the basis for the

Court’s holding in Santa Fe. The Third Circuit relied

on this “leading case on high school prayer” without

acknowledging the crucial difference between the

respective policies’ effects, thereby misapplying the

bright line articulated in Santa Fe.

B. The Third Circuit failed to recognize

the protected private nature of the

students’ speech and incorrectly held

that Coach Borden’s demonstration of

respect for the students’ speech trans-

formed that speech into impermissible

government endorsement of religion.

Because the Third Circuit failed to recognize the

protected private nature of the player-initiated,

player-led prayers, Coach Borden’s actions were

improperly relegated to the ash heap of “impermissi-

ble government endorsement.” In Santa Fe, the Court

was clearly concerned about the likelihood of school

attribution. 530 U.S. at 308. In that case, a student

broadcast the prayer over the school’s public address

system and addressed it to the general-public in a

“ceremony ... clothed in the traditional indicia of the

school’s sporting events.” Jd. The Court found this

action to be a coercive religious message indicating

school approval. No such imprimatur argument is

possible with student prayers in the EBSD. One of

the prayers occurs within the confines of the football

locker room where the District only allows authorized

personnel. Borden, 523 F.3d at 159. The second

prayer before the pre-game meal occurs in the school

cafeteria, where the prayers include the team, in

some cases the cheerleaders and other invited guests.

Id. The prayers are student-initiated, student-led and

constitute private speech.

Student-initiated, student-led prayer is constitu-

tionally protected private speech. As the Court noted,

private religious speech, hardly an “orphan,” is fully

protected under the First Amendment. Capitol

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

753, 760 (1995). The EBSD recognizes as much in its

policy, which allows student-led prayer and cedes

editorial control of that speech. This private student

speech bears none of the school imprimatur factors

troubling the Court in Santa Fe. To be sure, the

students in the instant case pray at a_ school-

sponsored event and wear the school’s athletic uni-

forms, but the Court in Santa Fe carefully acknowl-

edged not all speech occurring under these

circumstances is government speech. 530 U.S. at 302.

The question is whether Coach Borden, who does

not lead or participate in the prayers, but merely

demonstrates respect for his players’ private choice to

pray, transforms the students’ private speech by his

actions into impermissible government religious

speech? The Court in Santa Fe answered this ques-

tion by detailing the amount of school involvement

required to convert student private religious speech

into speech impermissibly bearing the State’s im-

print. Aside from a pro-prayer policy, the Court

detailed associative factors required for this trans-

formation. A school district must “affirmatively

sponsor” the speech, imbuing a high “‘degree of

involvement,” and thereby putting “‘school age

children in an untenable position.’” /d. at 313; id. at

305 (quoting Lee, 505 U.S. at 590).

The EBSD, however, does not engage in any

prayer “involvement” or “sponsorship,” and thus the

prayers involve no coercion. Neither the District nor

Coach Borden affirmatively sponsors the prayers, and

the prayers, if they occur, are student-initiated and

student-led. Coach Borden, in his email to the team

captains, explained the choice to pray was completely

in their hands and he would abide by whatever they

wished. Borden, 523 F.3d at 162. Neither the District

nor Coach Borden is involved with the prayers’ selec-

tion, formation or content. Finally, according to school

policy, it is completely at the players’ discretion

whether they pray, for what they pray, or even to

whom they pray. At all times, the speech is controlled

by students, in the private sphere, and free of State

coercion, where the Court permits it. Lee, 505 U.S. at

589. The Borden lead opinion essentially recognized

the non-coercive, non-transformative nature of Coach

Borden’s actions. Judge Fisher held that but for his

prior prayer history, the mere demonstration of

respect constituted just that — a demonstration of

respect for his players’ private speech. 523 F.3d at

178-79. Judge Barry’s concurrence agreed with that

assessment. /d. at 188. The district court went fur-

ther by discarding the prior prayer history element.

Id. at 164. Coach Borden’s passive, symbolic demon-

stration of respect for his players’ private choice to

pray does not rise to the level state involvement

found in Santa Fe, transforming private student

speech into government speech.

The question of the degree to which government

involvement rises to the level of coercion is examined

by the Eleventh Circuit after Santa Fe. In Chandler

v. Siegelman, 230 F.3d 1313, 1315-16 (11th Cir. 2000),’

the Eleventh Circuit, while not addressing the issue

of government employee involvement, grasped

the Court’s key Santa Fe distinctions. Unlike the

Third Circuit, the Eleventh Circuit understood the

difference between impermissibly coercive school-

sponsored religious speech — bearing the school’s

imprimatur — and private student speech protected

by the First Amendment. The Eleventh Circuit found

the state’s policy of permitting non-proselytizing,

non-sectarian, student-initiated prayer at school-

sponsored events, including graduations and football

games, did not violate the Establishment Clause. /d.

* In Chandler I, Chandler v. James, 180 F.3d 1254 (11th Cir.

1999), decided prior to Santa Fe, the Eleventh Circuit found

against plaintiffs who were challenging a school district policy

based on State law that permitted student-initiated prayer at

school functions. Chandler v. Siegelman, 230 F.3d at 1314. The

plaintiffs then filed for certiorari. On June 19, 2000, this Court

decided Santa Fe. Then, on June 26, 2000, this Court granted

plaintiffs’ writ of certiorari in Chandler I and vacated the

Eleventh Circuit’s judgment te allow consideration on remand in

light of Sania Fe. The Eleventh Circuit then found that Chan-

dler I was not in conflict with Santa Fe, reaffirming and rein-

stating it in Chandler v. Siegeiman, 230 F.3d at 1317.

* In Chandler I, the Eleventh Circuit did not directly

address the issue. The Eleventh Circuit held in part that a

school district could not “prescribe prayer or allow state employ-

ees to lead, participate in or otherwise endorse prayer of any

type during currcular or extracurricular events.” Chandler I,

180 F.3d at 1257 (See also id. at n.4.) In addition, the court held

that for teacher supervision of student-initiated, student-led

prayer to be unconstitutional, “it must cross the line into active

endorsement, encouragement or participation.” Jd. at 1265

at 1317. The Eleventh Circuit pointed out that the

Santa Fe holding “does not obliterate the difference

between state speech and private speech at school

sponsored events... nor does it hold that all religious

speech is inherently coercive” in this context. Jd. at

1316. The Eleventh Circuit noted that in Santa Fe,

the speech was coercive because the school district

entangled itself with the prayers to a degree where

the speech became the school’s, not because the

prayers occurred at a school-sponsored event. The

Eleventh Circuit correctly interpreted Santa Fe as

only forbidding state-sponsored coercive religious

speech. Id. Where the State has no involvement in the

students’ prayer choices, the decision to pray cannot

be coercive. Thus, Coach Borden’s passive, symbolic

demonstration of respect for his players after they

choose to pray cannot constitute government coercion

or state sponsorship of those prayers.

II. The Third Circuit failed to provide First

Amendment viewpoint protection to stu-

dent-initiated, student-led prayer, thereby

allowing EBSD’s policy to have the effect of

chilling constitutionally protected student

speech.

This Court has consistently held that students’

constitutional rights to freedom of speech and expres-

sion are protected within the public school setting.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 506 (1969); see Morse v. Frederick, 127 S. Ct.

2618, 2637 (2007) (Alito, J., concurring). The Court

has also consistently recognized religious viewpoints

in the school context as legitimate and protected by

the First Amendment.’ In this case, when the players

pray, they are expressing a constitutionally protected

viewpoint, which the government, by its mandate of

neutrality, must not only tolerate but also accommo-

date. Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

The EBSD, however, fosters an environment

hostile to religion through its policy and actions

* In Lamb’s Chapel v. Center Moriches Union Free School

District, 508 U.S. 384, 393 (1993) the Court held a school district

engaged in viewpoint discrimination when it did not allow the

presentation of movie from a religious perspective noting,

“religious speech is a fully protected subset of free speech.”

Similarly in Good News Club v. Milford Cent. Sch., 533 U.S. 98,

112 (2001); the Court again found viewpoint discrimination by a

school district not allowing the teaching of morals and character

development from a religious perspective. Finally in Rosenberger

v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)

the Court found viewpoint discrimination by a_ university

refusing funding to a religion-centric extra-curricular magazine.

In each of these cases, as with the EBSD, the government's

defense for attempting to silence these viewpoints was fear of an

Establishment Clause violation. The Court found in each of

these cases the violation was actually the schools’ own discrimi-

nation against students’ First Amendment rights. To be sure,

these cases involved extra-curricular activities in limited public

fora, which the Court failed to extrapolate to the circumstances

in Santa Fe. 530 U.S. 302-03. However, the Court based its

findings on the facts: the speech in question was the govern-

ment’s own and it resulted in coercion. Here, as in the case with

extra-curricular activities, the speech involved is pure student

speech uncoerced by any government pressure and thus more

akin tu the situations in Good News Club, Lamb’s Chapel and

Rosenberger.

regarding religious viewpoints and student speech,

i.e. prayer. The EBSD purports to take a constitu-

tionally mandated, religiously neutral stance by

constructing a policy that forbids employee participa-

tion in school prayer. Borden, 523 F.3d at 160-61.

What Santa Fe held and what the Third Circuit failed

to consider, however, was that facially neutral policies

are not all that are required to achieve true neutral-

ity. As the Court in Santa Fe observed, “the Estab-

lishment Clause forbids a State to hide behind the

application of formally neutral criteria and remain

studiously oblivious to the effects of its actions.” 530

U.S. at 307 n.21; Pinette, 515 U.S. at 777 (O'Connor,

J., concurring in part and concurring in judgment);

see also Church of Lukumi Babalu Aye, Inc. uv.

Hialeah, 508 U.S. 520, 534-35 (1993) (making the

same point in the Free Exercise context). Thus, the

District must take into account the effect a facially

neutral policy has on the student body, so its action

does not result in “neutrality in name but hostility in

fact.” Board of Educ. of Westside Cmty. Sch. v. Mer-

gens, 496 U.S. 226, 261 (1990) (Kennedy, J., concur-

ring in part and concurring in the judgment). If, as in

Santa Fe, the effect of a school’s prayer policy is to

make the students with “secular viewpoints” feel

awkward, coerced, uncomfortable or not part of a

“favored political class,” then surely the opposite

must also be true. Lynch, 465 U.S. at 688 (O’Connor,

J., concurring). Facially neutral policies, administered

by a government in a manner hostile to religious

expression because it makes believers feel awkward,

coerced or uncomfortable, must also be unconstitu-

tional.

The EBSD’s policy creates a condition that di-

rectly harms and discourages otherwise protected

student-led prayer. The effect on the players resulting

from EBSD’s religiously hostile policy is uncontro-

verted. Team captain Nixon testified that forbidding

Coach Borden from demonstrating respect for his

players’ constitutionally protected speech made Nixon

and the other players feel awkward, and hurt the

team’s morale and spirit. (Nixon Decl. 7 5.) These

effects and emotions experienced by the team are no

less coercive against student prayer than the coercion

for student prayer in Santa Fe. The EBSD’s policies

cultivate an environment that chills the students’

constitutionally protected speech. The Court in Lee

stated, “the government may no more use social

pressure to enforce orthodoxy than it may use direct

means.” 505 U.S. at 592. The EBSD attempts to

enforce a similar, and no less virulent, secular ortho-

doxy. The EBSD allows the students to pray, but

chills that speech by creating a hostile environment

that lowers morale, harms the spirit and causes

students who choose to pray to feel awkward and

unwelcome.

As the Court in Santa Fe noted, the history and

context in which schools form policies is important.

530 U.S. at 317 (quoting Pinette, 515 U.S. at 780

(O’Connor, J., concurring in part and concurring

in judgment)). In 1993, the Third Circuit chastised

the EBSD for its efforts to explore every legal way

possible to deny religious groups an equal opportu-

nity to meet and discuss viewpoints on_ school

grounds. Pope v. East Brunswick Bd. of Educ., 12 F.3d

1244, 1254 (3d Cir. 1993). The lead opinion in the

present case dismissed this prior admonishment in a

footnote, noting the school had allowed Coach Borden

to participate in prayers with the team in the inter-

vening years. 523 F.3d at 178 n.22. The fact remains

that when the current controversy confronted the

EBSD, it reverted to the same tactic employed in

Pope, utilizing every legal means to stifle protected

student speech and to demonstrate hostility toward

religion.

The EBSD manifests a hostile attitude toward

religious viewpoints in several ways. First, the prayer

policy threatens termination of any employee who

demonstrates respect when the students exercise

their constitutional rights. 523 F.3d at 160. Second,

EBSD board president Michael Baker derided Coach

Borden’s desire to demonstrate respect for his players

as a “personal agenda” during a board meeting about

the policy and the nascent controversy. /d. Third, in

brief and oral argument before the district court, the

EBSD asserted that it simply desired a clarification

of the District’s and Coach Borden’s rights. /d. at 185.

When the district court ruled against EBSD, however,

its anti-religious bias became evident. Now free from

potential Establishment Clause litigation, it never-

theless appealed to the Third Circuit. This decision is

not surprising given the EBSD’s historically anti-

religious bias. Just as the Court found a ruse in the

SFSD’s supposedly “religion neutral” policy, an equal

and opposite ruse is afoot in the EBSD’s anti-religion

policy. 530 U.S. at 308 (quoting Wallace, 472 U.S. at

75 (O’Connor, J., concurring in judgment)). Moreover,

much like this Court did not allow the suppression of

minority viewpoints in Santa Fe, it should not allow

the EBSD’s suppression of the players’ religious

viewpoints.

Ill. The Court should clarify and unify the

test in school environment religious ex-

pression cases by articulating and adopi-

ing a Coercion test which allows passive

and symbolic conduct by government ac-

tors, protects individual viewpoints, and

does not chill constitutionally protected

student-initiated and student-led prayer

in a school environment.

The Court’s self-described “tangle” of various

tests leaves circuit courts, district courts and the

attorneys practicing in them a confusing, convoluted

maze through which they must travel to determine

the most efficient way to adjudicate and litigate

Establishment Clause cases. County of Allegheny v.

ACLU, 492 U.S. 573, 668 (1989) (Kennedy, J., concur.

ring in the judgment and dissenting in part). Other

Justices acknowledge this ambiguity and describe the

Court’s approaches as “embarrassing,” Edwards uv.

Aguillard, 482 U.S. 578, 639-40 (1987) (Scalia, J.,

dissenting), and in “hopeless disarray,” Rosenberger,

515 U.S. at 861 (Thomas, J., concurring). Legal

scholars also have criticized the Court’s seemingly

haphazard approach: “a more confused and often

counterproductive mode of interpreting [the religion

clauses of] the First Amendment would have been

difficult to devise.” Michael W. McConnell, Exchange;

Religious Participation in Public Programs: Religious

Freedom at a Crossroads, 59 U. Chi. L. Rev. 115

(1992). See also Leonard W. Levy, The Establishment

Clause: Religion and the First Amendment, 163

(MacMillan 1986) (“the Court has managed to unite

those who stand at polar opposites on the results that

the Court reaches; a strict separationist and a zealous

accommodationist are likely to agree that the Su-

preme Court would not recognize an establishment of

religion if it took life and bit the Justices.”).

While scholars may engage in hyperbole, the fact

remains that the Court can implement a single

straightforward test in this area of constitutional law.

The Court’s failure to articulate such a standard wil!

result in continuing anomalies like Borden. The best

alternative to help clarify the disparate standards is

the Coercion test articulated by Justice Kennedy in

Lee. The test discounts passive and symbolic govern-

ment conduct, ensures the courts will recognize all

religious and nonreligious perspectives and provides

proper constitutional protections for private speech in

this context

A. The Court currently applies at least

three tests for adjudicating Estab-

lishment Clause cases like the instant

case, which leads to disparate findings

of constitutional protection for similar

speech.

The oldest of the tests currently employed is the

Lemon test. First developed in 1971 in Lemon uv.

Kurtzman, 403 U.S. 602, 612-13 (1991), it requires a

three-step examination to determine the constitu-

tionality of government action involving religion.

Such action: (i) must have a secular purpose; (ii) its

primary effect must neither advance nor inhibit

religion; and (111) 1t must avoid excessive government

entanglement with religion to pass constitutional

scrutiny. Jd. The Court rarely follows this test alone,

although it is often invoked. For example, the Court

has alternately used it when a lower court did not,

e.g., Lamb’s Chapel, 508 U.S. 384, and discarded it

when it was the lower court’s exclusive analytical

tool, Marsh v. Chambers, 463 U.S. 783, 786, 792

(1983). The Court has also incorporated the test, but

not in a dispositive manner, describing the test’s

elements as “no more than helpful signposts.” Hunt v.

McNair, 413 U.S. 734, 741 (1973). Unsurprisingly,

multiple Justices, including Kennedy, Allegheny, 492

U.S. at 656 (concurring in the judgment and dissent-

ing in part), O’Connor, Aguilar v. Felton, 473 U.S.

402, 426-30 (1985) (dissenting), Rehnquist, Wallace v.

Jaffree, 472 U.S. 38, 108-13 (1985) (dissenting), and

Thomas, Elk Grove Unified Sch. Dist. v. Newdow, 542

U.S. 1, 45-8 (2004) (concurring), have criticized the

test and/or berated the Court for its uneven applica-

tion. Justice Scalia’s disparagement has been espe-

cially acerbic: “[the test] like some ghoul in a late

night horror movie that repeatedly sits up in its grave

... after repeatedly being killed and buried... stalks

our Establishment Clause jurisprudence once again,

frightening little children and school attorneys ,

Lamb’s Chapel, 508 U.S. at 397 (concurring in the

judgment).

The second test, applied more frequently in

recent years, is the Endorsement test. This test

originated in Justice O’Connor’s concurrence in

Lynch, 465 U.S. at 688. The test is based on the

premise that government may neither endorse nor

disapprove of religion. A perceived government en-

dorsement of religion sends a message to non-

believers that they are “outsiders” and to adherents

that they are “favored members of the political com-

munity.” Jd. The Court employs a “reasonable ob-

server” standard, taking into account the government

action’s context and history to probe government

endorsement. Pinette, 515 U.S. at 772. Like its prede-

cessor, this test, while appearing neutral on its face,

actually has a strong anti-religious predisposition

because the very nature of “establishment” indicates

actions imbuing government approval or support for

religion. James A. Campbell, Note: Newdow Calls for

a New Day in Establishment Clause Jurisprudence:

Justice Thomas’s “Actual Legal Coercion” Standard

Provides the Necessary Renovation, 39 Akron L. Rev.

Cl od

541, 555 (2006). Thus, while a fervently secular

hypothetical government could wipe all religious

remnants from society, its actions could not be con-

strued as “establishing” religion. Accordingly, the

Court has not applied the Endorsement test to invali-

date government activity condemning religion. /d.

(quoting McConnell, Crossroads, supra p.16, at 152).

Justice Kennedy has recognized the inherently

flawed nature of the Endorsement test and has

written extensively about its shortcomings. He writes

in Allegheny, 492 U.S. at 668-69 (concurring in the

judgment and dissenting in part), the Endorsement

test is “flawed in its fundamentals and unworkable in

practice,” and its addition to Establishment Clause

jurisprudence “most unwelcome.” One of the problems

with the Endorsement test is that it would result in a

radical separation of church and state, a result not

envisioned by our founding fathers, never required by

the Court of any era and anathema to the history and

traditions of the United States. Lynch, 465 U.S. at

673. As Justice Kennedy noted: “Whatever test we

choose to apply must permit not only legitimate

practices two centuries old, but also any other prac-

tices with no greater potential for an establishment of

religion.” Allegheny, 492 U.S. at 670 (concurring in

the judgment and dissenting in part). Indeed, accord-

ing to Justice Kennedy, “the United States Code itself

contains religious references that would be suspect

under the endorsement test.” Jd. at 672.

The latest test in the Court’s litany is the Indi-

rect Coercion test, first championed by Justice Ken-

nedy in Lee, 505 U.S. at 587. It holds the government

may not coerce (directly or indirectly) anyone to

support or participate in any religion or its exercise

and may not “act in a way which tends to establish a

state religious faith or tends to do so.” Id. While

“coercion” is a good basis from which to draw a uni-

form standard, the subjective nature of indirect

coercion has been criticized because it places judges

in the position of amateur psychologists rather than

jurists, sometimes relying on easily manipulatable

psychological studies. Jd. (Scalia, J., dissenting).

B. The Court should articulate and adopt

a single test that does not implicate

passive or symbolic government con-

duct when determining an Establish-

ment Clause violation, yet affords

constitutional protection for private

speech in a public school environment.

The most sensible test is a Coercion test that

discounts passive and symbolic government speech as

too tenuous to rise to the level of an Establishment

Clause violation. This reasonable and clear standard

continues to allow government to sponsor events at

which a religious invocation is given, as in Lee, while

protecting practices that have no likelihood of “estab-

lishing a religion or tending to do so.” 505 U.S. at 580;

Lynch, 465 U.S. at 678. Indeed, Justice Kennedy

warned of the dangers of making too tenuous a con-

nection between government conduct and the estab-

lishment of religion: “Absent coercion, the risk

of infringement of religious liberty by passive or

symbolic accommodation is minimal.” Allegheny, 492

U.S. at 662 (concurring in the judgment.and dissent-

ing in part). A Coercion test that eliminates passive

and symbolic conduct from consideration remains

true to Justice Kennedy’s ideals of preventing gov-

ernment coercion while not directly benefiting relig-

ion. This test also allows the “benevolent neutrality”

absent from the Court’s current approaches. Id. at

661. Eliminating any passive or symbolic conduct

from suspect status would also enable the Court to

read the religion clauses of the First Amendment in a

manner more closely aligned with the original under-

standing of the clauses and truer to the United

States’ history and traditions. “The history of the

Religion Clauses dispels any notion that government

is forbidden from affirming, through language or

symbol, the special status of religion in public life.”

Christal L. Hoo, Thou Shalt Not Publicly Display the

Ten Commandments: A Call for a Reevaluation of

Current Establishment Clause Jurisprudence, 109

Penn. St. L. Rev. 683, 698 (2004). The government

has engaged in passive and symbolic, non-coercive

conduct since the founding. The United States re-

mains the envy of the world for its religious tolerance.

The government may achieve true neutrality only by

applying a test that allows this accommodation to

remain and flourish.

CONCLUSION

For the reasons provided above, the petition for

writ of certiorari should be granted.

Respectfully submitted,

EDWIN MEESE III

Of Counsel

SOUTHEASTERN LEGAL

FOUNDATION

6100 Lake Forrest Drive, N.W.

Suite 520

Atlanta, GA 30328

(404) 257-9667