(fwd from Marty Lederman) re: Student graduation prayer

[Eugene Volokh]

------- Forwarded Message Follows -------

From: LoAndEd at aol.com
To: RELIGIONLAW at LISTSERV.UCLA.EDU
Subject: Re: Ninth Circuit allows student speakers to pray

Gosh.  I wasn't aware that 'twas I [along with the Federal Judiciary] who was
"mak[ing] those who pray `feel like outsiders'" by "assimilating prayer to
rude speech."  For the record, obviously I do not equate prayer -- or even
"exhortation to prayer" -- with "rude speech."  Most importantly, of course,
the latter, but not the former, typically is invidiously motivated and
intended to harm or ridicule.  Furthermore, generally I am what some might
consider a free-speech "extremist," sharing many (albeit not all) of the
Volokhian presumptions; accordingly, I would be thrilled if schools did, in
fact, permit private student speakers free reign to say whatever they wish in
speeches, student newspapers, etc.  I am no great fan of Hazelwood or Fraser,
and I think the appropriate response to private speech that the government
does not wish to be perceived as "endorsing" is an effective and prominent
disclaimer, where possible:  i.e., Souter and O'Connor got it right in
Pinette.  But --

(1) I remain skeptical that the school district in a case such as this one
truly is, or would remain, "neutral" when it comes to religious speech (or
speech about religion).  Of course, it is not *my* suspicion that should, as a
legal matter, "obligate" the government to "discriminate against religious
speech."  The test is (at least according to O'Connor, and in this context I
think it makes sense), whether a reasonable observer -- say, a student with no
stake in the controversy -- would perceive that the school district is truly
neutral toward religious speech.  That reasonable observer would, in other
words, have to believe (i) that the district's "freedom of valedictorian
speech" policy was *not* motivated by a desire to circumvent the courts'
injunctions against school-sponsored prayer; and (ii) that the district truly
would react exactly the same way if a series of valedictorians gave speeches
full of anti-religious sentiment (or extolling obscure and disfavored
religions, etc., etc.).  I don't know the factual background of the Idaho case
(it doesn't yet appear to be on Westlaw; is there any way to retrieve it?),
but I would be surprised if these criteria could be satisfied.

(2)  Even though exhortation to prayer in this setting is, in many obvious and
important ways, *not* equivalent to epithets or rude speech, neither is it
inevitably "suitably mild-mannered."  In a community that is predominantly of
one religion (and perhaps in other communities as well), such group prayer at
a high-school graduation -- no matter how well-intentioned -- can have
terrible effects (indeed, effects that could effectively undermine many of the
principal virtues of a high-school graduation ceremony).  I would have thought
this would be fairly evident, but Eugene writes:

"[Forbidding such group prayer] might well make those who pray "feel like
outsiders" -- perhaps not outsiders in the small community governed by their
graduation speaker decisions, but definitely outsiders in the national
community governed by the federal courts' dictates. . . .  Why should we worry
about the discomfort of those who feel they have to listen to prayer, or be
concerned that they feel like outsiders?  Why not instead focus on the
discomfort of those who feel silenced by a ban on prayer, and who in turn feel
like outsiders themselves?  One way or another, we run the risk of some
discomfort (maybe more in one case than in another, but there's no objective
way of measuring that) or of someone feeling like an outsider."

I honestly don't know what to make of this.  The "assimilation" of these two
types of "discomfort" befuddles me.  One group of students -- the nonreligious
minority or those who are not of the majority religion -- are, at their own
high school graduation, made to feel as if they are not a part of the
community, and that they have adopted an incorrect or insufficient view of
God, or of ultimate values, or of spiritual aims and endeavors.  The other
group of students -- the vast majority, who live in a community that shares
and confirms their fundamental beliefs and values, and with whom school
officials invariably sympathize -- are not permitted to use the secular
school's graduation ceremony for religious purposes.  I just don't see any
equivalence at all here.  The 99% of the kids at Rachel Bauchman's school were
more "silenced" than she was?  Made to feel more like outsiders?  Am I missing
something?  Ah, yes, they're not "outsiders in the small community governed by
their graduation speaker decisions, but definitely outsiders in the national
community governed by the federal courts' dictates."  That is to say, it is
Engle, Schempp and Lee v. Weisman that have made these students feel like
"outsiders," since, under those decisions, the public schools can't themselves
advance religion to the detriment of nonbelievers.  Sorry, I can't get too
exercised about that.  And I find incomprehensible the notion that this
Establishment Clause-based, judicially imposed, "outsider" status (you're an
outsider because you can't use the schools to promote religion?) is equivalent
to the outsider status felt by the minority-religion students when the
majority of students (and administrators) find ways to circumvent -- i.e.,
thumb their noses at -- the Supreme Court's decisions by demonstrating the
majority's determination to use the secular school setting as a means of
affirming the majority religion.

For all of these reasons, I think that if school officials do suspect that a
valedictorian will exhort the audience to prayer, the officials would be well-
advised to counsel against it and/or declare the school's view that it is
inappropriate (without punishing it); at the very least, they should issue a
clear disclaimer of official endorsement.

(3) When a graduation speaker goes beyond religiously motivated speech to
"exhortation to prayer," there does arise a more difficult state-action
question.  In that case, the speaker no longer addresses remarks *to* an
audience:  she leads an assemblage.  In effect, she "conducts" part of the
graduation ceremony, at which many of the students might (reasonably) feel
like a captive audience.  This is not quite the same as the public forum cases
such as Rosenberger, Pinette, Widmar, etc., and raises a more substantial EC
problem.

Marty Lederman
(The foregoing does not necessarily represent the views of DoJ or of the
federal government; for those views, please refer to the President's weekly
radio address last Saturday, and the recently reissued Guidelines on Religious
Expression in Schools (which, because of the uncertainty of the court of
appeals' present caselaw, does not express a view on the various "student-
sponsored-graduation-prayer" issues)).


Eugene writes:


>  1)  Well, suspicion is all well and good, but I'm not sure that
>  the government may be obligated to discriminate against religious
>  speech based on such suspicion.  Recall my newspaper columnist
>  example; I suppose one could argue that, if a newspaper columnist
>  selected under the "top three journalism students get columns" ended
>  up using his column to endorse Satanism, we could speculate that the
>  school might eventually change its policy.  Maybe.  But that's not
>  reason enough to discriminate against that columnist's religious
>  speech.
>
>      2)  I agree entirely that "the prohibition on the `extreme' types
>  of speech by the graduation speaker (epithets, racism, etc.), without
>  a similar prohibition on concerted prayer, does, at the very least,
>  send the following message:  `The school district believes that
>  certain forms of speech are entirely inappropriate for a high-school
>  graduation ceremony; but leading the crowd in prayer is not among
>  them.'"  (The same would go for a similar policy in my newspaper
>  hypo.)  But this hardly strikes me as a particularly troubling
>  message.
>
>      *Of course* epithets, racism, etc. are much less appropriate than
>  prayer or even exhortation to group prayer (I don't recall that this
>  case involved exhortation to group prayer, but perhaps I'm mistaken).
>  Tremendously so.  Treating prayer the same as polite speech, and
>  differently from (and differently than) rude speech strikes me as
>  quite untroubling.  In fact, assimilating prayer to the rude speech
>  is what I find "discomforting," and what I think might well make
>  those who pray "feel like outsiders" -- perhaps not outsiders in the
>  small community governed by their graduation speaker decisions, but
>  definitely outsiders in the national community governed by the
>  federal courts' dictates.  (The fact that someone is a Christian in a
>  majority Christian country governed by nominal Christians is obviously
>  not enough to keep them from feeling like an outsider.  The
>  Christianity of the school board or school administration or student
>  body in the Idaho town is hardly identical to the Christianity of the
>  median voter in the federal judiciary.)
>
>      3)  This ties in to my broader objection to the "discomfort" /
>  "feel like outsiders" arguments: that they are depressingly circular.
>  Why should we worry about the discomfort of those who feel they have
>  to listen to prayer, or be concerned that they feel like outsiders?
>  Why not instead focus on the discomfort of those who feel silenced
>  by a ban on prayer, and who in turn feel like outsiders themselves?
>  One way or another, we run the risk of some discomfort (maybe more in
>  one case than in another, but there's no objective way of measuring
>  that) or of someone feeling like an outsider.
>
>      Aha, one can say, but the difference is that when the prayer is
>  allowed, people are discomforted by unconstitutional action, while
>  when it's forbidden, people are discomforted just by the upholding of
>  the Constitution.  But this begs the question.  If we knew that the
>  prayer was unconstitutional or that banning it was just upholding the
>  Constitution, we wouldn't need the discomfort / feel-like-an-outsider
>  analysis -- we'd know the constitutional answer already.  But if we
>  don't yet know whether prayer is unconstitutional, then the
>  discomfort / feel-like-an-outsider analysis is indeterminate.
>
>      4)  Finally, the fact that concerted prayer by the majority makes
>  people feel like outsiders wouldn't in any event help us determine
>  whether the government should be treated as constitutionally
>  responsible for this prayer.  After all, the Establishment Clause
>  can't generally ban all action, even all action at government
>  events, that makes religious group members feel like outsiders.
>
>      For instance, if I work in a government office and at any lunch
>  meeting my colleagues say Grace, I might feel like an outsider, but
>  that's just too bad.  And this is true even though I'm a "captive
>  audience," even though the government is in some sense the but-for
>  cause of the behavior -- after all, had the government banned such
>  behavior, or had it hired irreligious people, it wouldn't happen --
>  and even though the government doubtless bans certain speech (such as
>  epithets and racist speech) of its employees at the lunchroom table.
>  The Estab Cl doesn't require the government to restrict this speech,
>  regardless of my feelings, because the government is not considered to
>  be responsible for it under the Estab Cl.  This latter inquiry about
>  government responsibility for the speech must be conducted prior to
>  any inquiry about how listeners will react.  (If you insist on a
>  school hypo, just change this to a meal eaten by the basketball team
>  on the road.)
>
>      5)  Finally, I agree entirely that the Estab Cl does apply when
>  someone is speaking on the government's behalf; and that the
>  government *may* try to act, even to the point of restricting speech,
>  in situations where someone may be erroneously assumed to speak on
>  the government's behalf.  But I don't see how this imposes a *duty*
>  for it to act, especially when the speech is by someone chosen based
>  on his academic success.  A valedictorian, to my knowledge, isn't
>  generally seen to speak with the voice of the school; the school
>  endorses the speaker, not the speech, except in the hopes that such a
>  fine student will naturally (with a huge push from social convention)
>  say something suitably mild-mannered.
>