School Prayer

Santa Fe Independent School District v Doe (June 2000)

School prayer disputes represent one of the most controversial topics in recent years. Some in our society believe that establishment clause cases have expunged religion from our society by removing non-sectarian prayer from schools. Others argue that the phrase non-sectarian takes on different meanings depending upon who is in the local majority. They assert that those who represent the majority religion in a particular school district take special pride in integrating education with their own special form of religious expression: there is a danger that what begins as non-sectarian ultimately becomes a celebration of majority sectarian views.

These two concerns: the desire to maintain religion as a special part of our society, and the desire to protect religious freedom, remain in constant tension. In the June 2000 Helms decisions, discussed in a prior panel, non-Catholic students and their parents challenged use of federal assistance in Catholic parochial schools in majority Catholic sections of Louisiana. They alleged that the majority overlooked misuse of equipment for sectarian purposes. In the Santa Fe School District case, however, Morman and Catholic students challenged activities by the Protestant majority.

The school prayer debate arose again in 2000 in the Sante Fe School District case. The District there established a system whereby democratically elected students would deliver prayers at football games. The Santa Fe School District reasoned that school prayer would not run afoul of the establishment clause if prayers were run by democratically elected student representatives. The District's plan worked as follows. Students would select a High School student council chaplain. The "chaplain" would regularly deliver a prayer over the public address system before each home varsity football game. Mormon and Catholic students who objected to the content of these prayers, or being required to listen to them at publicly sponsored football games, sued. While the suit was pending, the school district changed the policy and gave students the opportunity to vote in favor or against the prayers. In the first election, students would determine whether "invocations" should be delivered at games, and in the second, they would select the spokesperson to deliver them.

Six Justices joined in an opinion finding this procedure unconstitutional. Thee invocations were authorized by a government policy. They took place on government property at government-sponsored school-related events. The School District pointed out that prior opinions allowed public bodies to lend the podium to quasi-secular uses, if done in a nuetral way. But Santa Fe's system granted podium access only to religious messages selected by the majority: the essence of religious establishment. After all, the establishment clause exists precisely to prevent the majority from imposing its religious preferences upon the.

Although the District relies heavily on Rosenberger and similar cases involving such forums,12 it is clear that the pregame ceremony is not the type of forum discussed in those cases.13 The Santa Fe school officials simply do not "evince either `by policy or by practice,' any intent to open the [pregame ceremony] to `indiscriminate use,' . . . by the student body generally." Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270 (1988) (quoting Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 47 (1983)). Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student's message. By comparison, in Perry we rejected a claim that the school had created a limited public forum in its school mail system despite the fact that it had allowed far more speakers to address a much broader range of topics than the policy at issue here.14 As we concluded in Perry, "selective access does not transform government property into a public forum." 460 U. S., at 47.

The Court noted that in Board of Regents of Univ. of Wis. System v. Southworth, it had explained the difficult with allowing the majority to determine what form of expression would be appropriate.

Like the student referendum for funding in Southworth, this student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority. Because "fundamental rights may not be submitted to vote; they depend on the outcome of no elections," West Virginia Bd. of Ed. v. Barnette,319 U. S. 624, 638 (1943), the District's elections are insufficient safeguards of diverse student speech.

This is one of a series of legal education panels, part of Law for Laymen, by the Rinke-Noonan Law firm of St. Cloud, Minnesota. Law for Laymen/Constitutional Law/First Amendment. Reach Home by clicking the button below.