Laycock's post on Santa Fe

[James G. Dwyer]

To bolster Mark's point, I would add that there is probably no neutral
selection process other than a lottery.  If school administrators or a
majority of students are inclined to favor students who have certain
religious views when selecting a commencement speaker, then I would guess
they are also likely to favor such students in every other area of school
life to the extent possible, such as in awarding grades, appointing or
electing student government officers, etc..  So choosing a commencement
speaker on the basis of class rank or office or any other basis besides a
lottery would raise the same concerns, though perhaps in a more attenuated
fashion.

However, choosing commencement speakers by lottery would probably be a bad
idea for different reasons, such as the trauma it could cause an extremely
shy or insecure student who gets chosen or the potential for an alienated
student to ruin the special day by using the platform inappropriately.  So
what is to be done?  It would surely be a shame to eliminate student
speakers.  Mark suggests one solution -- treat the speech as government
speech and not allow religious content.  He is troubled by the inconsistency
with rules governing universities and community centers, but of course those
contexts are different in relevant ways from children's schooling, and the
courts have recognized this -- e.g., children in school are a captive
audience, graduation is such a big deal for them, graduation ceremonies
don't allow for responses to speakers, etc..  The alternative alluded to --
let administrators pick students on any ostensibly neutral basis and leave
it to those discriminated against in practice sue, is problematic not just
because of the usual difficulty of proving covert bias, but also because of
the particular practical and social difficulties a child would have in
challenging perceived bias by adults or peers.  Selection by grade point
average without restriction on content seems somewhat reasonable as a middle
ground, but I would worry about this having an affect on the awarding of
grades.

Jim Dwyer

> -----Original Message-----
> From: Scarberry, Mark [SMTP:mark.scarberry at PEPPERDINE.EDU]
> Sent: Wednesday, February 09, 2000 6:47 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Laycock's post on Santa Fe
>
>  In response to Prof. Alan Brownstein's post suggesting, as I understand
> it,
> that discretion to choose who speaks on public property must be tightly
> controlled to guarantee that there is no viewpoint discrimination:
>
>  Santa Fe is a more difficult case than Doe v. Madison, and I might end up
> agreeing with Doug Laycock on it. (Certainly Doug is one of the most
> eloquent and persuasive proponents of religious liberty; that is not
> changed
> by any disagreement some of the list members might have with him about the
> Santa Fe case.) But I don't think Alan's analysis resolves the issue.
>
> Aren't these cases (speeches before football games, graduation speakers) a
> little bit like the publicly owned theater cases? There is not enough time
> or space to allow all comers to express themselves. There has to be some
> kind of selection process. I have a vague recollection that the operators
> of
> publicly owned theaters cannot engage in obvious viewpoint discrimination
> (wasn't there a case involving the musical *Hair*?). Just as clearly, we
> don't want to use a first come, first served approach to who gets to play
> the Kennedy Center, do we? Can't there be some judgment of literary or
> artistic quality, or even of popularity? Similarly it seems reasonable to
> allow some discretion in selection of graduation speakers, whether they
> are
> student speakers or speakers from the community. Absent evidence of
> viewpoint discrimination, the principal or school superintendent (or
> perhaps
> the student body) should be able to select the speakers. Use of grade
> point
> average to choose speakers is one neutral way to choose student speakers,
> but the school might reasonably want to have the best or most interesting
> speakers speak, rather than the students with the highest grades. The
> possibility of hidden viewpoint discrimination seems to be innate in a
> reasonable resolution of these issues.
>
> It seems to me that this makes doubtful whether Alan's Free Speech
> argument
> resolves the issue.
>
> Perhaps then the argument is that where (1) the govt (or the student body
> supposedly acting for the govt) chooses the speaker, and (2) there is no
> guarantee of a lack of viewpoint discrimination, then the speech should be
> considered to be govt speech, subject to Estab. Clause restrictions.
>
> But that doesn't seem to fit with the discretion afforded those who run
> public facilities (such as public college auditoriums or community
> performing arts centers). If UCLA invites a famous philosopher (or
> biologist) to speak, and he says, "We are the products of time and chance;
> we are not made in the likeness of any creator," is that the govt speaking
> against certain religious beliefs in violation of the Estab. Clause? I
> don't
> think it should be a violation. If UCLA only invited speakers who had an
> atheist viewpoint to speak, that would show impermissible endorsement of a
> particular viewpoint on religion; perhaps there would be both a Free
> Speech
> and Estab Clause violation. But absent evidence of such viewpoint
> discrimination, shouldn't we allow those who run UCLA's public lecture
> hall
> to exercise discretion in the speakers they book?
>
> I think we need a more complex analysis than Alan's (but I don't claim to
> understand just what it should be).
>
> Mark S. Scarberry
> Pepperdine Law School
>
> -----Original Message-----
> From: A.E. Brownstein
> To: RELIGIONLAW at listserv.ucla.edu
> Sent: 2/9/00 3:39 PM
> Subject: Re: Laycock's post on Santa Fe
>
> I have made this point before but it bears repeating in light of Mr.
> Johnson's long and thoughtful post.
> The Santa Fe School District is not selecting students to speak on the
> basis of neutral criteria as would be the case if the student with the
> highest grade point average was selected to speak (the Madison case).
> Instead, the School District is giving the student body unbridled
> discretion to determine who will be allowed to speak on public property.
> I
> think that raises at least a Free Speech Clause problem if it doesn't
> raise
> an Establishment Clause problem as well. It strikes me as completely
> inconsistent with a principled commitment to religious liberty and
> freedom
> of speech.
>
> Let me shamelessly quote from an article I wrote that will be published
> soon.
>
> "Generally speaking, vesting this kind of discretionary authority in the
> individual or group who has the power to decide who will be allowed to
> speak on public property is anathema to the First Amendment. Unfettered
> discretion is always constitutionally problematic because it creates
> such
> an obvious risk that implicit viewpoint discrimination will color the
> state
> or the majority's choice of speakers. The Court has made this point
> repeatedly in its free speech opinions. As Justice Brennan wrote in City
> of
> Lakewood v. Plain Dealer Publishing Co., "a law or policy permitting
> communication for some but not for others raises the specter of content
> and
> viewpoint discrimination. This danger is at its zenith when the
> determination of who may speak and who may not is left to the unbridled
> discretion of a government official." Certainly, the danger of implicit
> viewpoint discrimination isn't mitigated in any way when unbridled
> discretion is conferred on a student body or other group rather than an
> individual.
>
>          This core First Amendment doctrine doesn't presume that
> discretion
> will always be exercised in a discriminatory manner. Its focus is on the
> constitutional necessity of minimizing the risk that discrimination will
> occur. Thus, "the success of a facial challenge on the grounds that an
> ordinance or [policy] delegates overly broad discretion to the decision
> maker rests not on whether the administrator has exercised his
> discretion
> in a content-based manner, but whether there is anything in the
> ordinance
> prohibiting him from doing so." [Forsyth County v. Nationalist Movement]
> It
> is clear that there are no checks on the power delegated to student
> bodies
> to select student speakers for graduation programs when the school
> simply
> defers to the choice of the majority of students in an election."
>
>          The court's accept facial challenges in these cases because
> they
> know that decision makers can far too easily employ post hoc
> rationalizations and shifting criteria to justify their decisions which
> will make it very difficult for a reviewing court to determine whether
> certain points of view are being favored or disfavored. While most of
> these
> cases involving ad hoc and standardless discretion deal with free speech
> claims, there is at least one circuit case that applies the same
> reasoning
> in an Establishment Clause analysis, American Jewish Congress v. City of
> Beverly Hills, 90 F.3d 379.
>
>          When the state delegates control over access to public property
> for expressive purposes to private citizens and enforces their decisions
> with state power, I think the Constitution controls the delegation and
> exercise of power just as it does when power is delegated to a
> government
> official. The delegation of unbridled discretion to decide who will be
> permitted to speak on public property to a private citizen or group of
> citizens is just as unconstitutional as a similar delegation to a state
> agent.
>
>                                                          Alan Brownstein
>                                                          UC Davis.
>
>
>
>
>
>
>
> At 11:49 AM 02/09/2000 -0600, you wrote:
> >I read with interest Doug's post on the Santa Fe case,
> >as well as his comments on it in the NY Times last
> >Sunday.  While I agree with his views in part, I'm not
> >sure he's painted a complete picture here.  I am surprised
> >by his (uncharacteristic) sweeping statement that
> >"defenders of religious liberty" have no business siding
> >with the school district.  Contrary to Doug, reasonable
> >people can disagree about what is best for religious
> >liberty in Santa Fe v. Doe.
> >
> >I too have read the record in the Santa Fe case, and
> >I agree that the actions of Santa Fe's school officials
> >*in general* leave much to be desired.  There were
> >examples of teachers brow-beating students for their
> >religious views, and the former policy of the district
> >was to invite a student chaplain to deliver a prayer
> >before each football game.  That policy was not neutral
> >toward religion: there would be prayer or there would
> >be no speech at all, and the student was chosen
> >*precisely because* he/she would deliver a prayer.
> >Nor did the speaker retain control over the content
> >of his/her remarks -- the speaker had to deliver a
> >prayer.
> >
> >But the issue on which the court granted certiorari
> >is narrow and distinct -- it is limited to the *facial*
> >validity of the District's *new* policy regarding
> >football games, not its various other misdeeds.
> >The *new* policy directs the students to conduct
> >an election, by secret ballot, to do two things:
> >decide whether to have an "invocation and/or
> >message," and, if so, to elect someone to give it.
> >The policy also states that "[t]he student volunteer
> >who is selected by his or her classmates may
> >decide what message and/or invocation to deliver,
> >consistent with the goals and purposes of this
> >policy."  Those goals and purposes include
> >solemnizing the event, promoting good
> >sportsmanship, and establishing an appropriate
> >environment for the competition.  Because the
> >policy was adopted in response to the District
> >Court's order, there is *no* record evidence on
> >its application.  Thus, the Court will be passing
> >on a facial challenge, and nothing more.
> >
> >Could this policy be improved?  Certainly.
> >The election could be somewhat problematic
> >in application on the theory that it might turn
> >into a referendum on whether to have a prayer.
> >It is of course impossible to determine in advance
> >what criteria will be used by the students to select
> >the speaker.  And the phrase "invocation and/or
> >message" would better be broadened to make it
> >clear that a broad range of speech is permissible.
> >(In that regard, I would have been much happier to
> >see the Court take a case like Doe v. Madison Sch.
> >Dist, 147 F.3d 832 (9th Cir. 1998) (later vacated as
> >moot), where the policy permitted students selected
> >on academic grounds to deliver "an address, poem,
> >reading, song, musical presentation, prayer, or any
> >other pronouncement" at their graduation.)  One
> >could reasonably argue that the solemnizing
> >requirement is more likely to be satisfied by
> >religious speech than by secular speech, but
> >there would also seem to be a broad range of
> >secular messages that are serious in tone. Students
> >might extol the sportsmanship of the late Walter
> >Payton, or they might suggest a moment of
> >silence in memory of the students who recently
> >lost their lives building the Texas A&M bonfire; they
> >needn't pray.
> >
> >That said, I think there are strong arguments
> >that the policy is *facially* valid because
> >speakers are selected on a neutral basis and
> >retain control over their remarks. On its face, an
> >election is a neutral means of selecting a speaker.
> >Students are likely to cast their vote for any
> >number of reasons -- popularity, athleticism, good
> >looks, intelligence, public speaking ability, to
> >name a few.  Nothing in the Santa Fe policy
> >encourages students to select a speaker for
> >non-neutral reasons.  Would it be constitutional
> >for students to vote to invite the Reverend Jesse
> >Jackson to deliver a pre-game message, based
> >on his fame?  I think so, and the result should
> >be no different if he delivered religious remarks,
> >provided he retained control over them and the
> >state does not attempt to put its thumbs on the
> >scales to tilt the speech in a religious direction.
> >
> >Similarly, insofar as the policy permits students
> >to retain control over their remarks, any religious
> >speech is not attributable to the state.  As
> >Justice Souter observed in his concurring opinion
> >in Weisman, a different case would have been
> >presented "[i]f the State had chosen its graduation
> >day speakers according to wholly secular criteria,
> >and if one of those speakers (not a state actor) had
> >individually chosen to deliver a religious message."
> >I think those are the relevant inquiries -- are speakers
> >chosen on the basis of secular, neutral criteria and do
> >they retain control over their remarks? -- and think it
> >would be a victory for religious liberty if that were the
> >Court's rationale in Santa Fe, regardless of how the
> >case comes out.
> >
> >If memory serves, Doug himself has said in print
> >that our constitutional system is based on case-by-
> >case adjudication, not on speculation about the
> >downstream effects of a decision.  By that standard,
> >the evidence of record that does not relate to the
> >football policy should not be allowed to "taint" the
> >Court's analysis, and "what [he] ha[s] been told
> >outside the record" is even more beside the point.
> >Indeed, it would be odd if the District's former or
> >unrelated policies were dispositive of whether its
> >current football policy is constitutional.  If it were,
> >no government body could ever correct an
> >unconstitutional practice.  Moreover, insofar as the
> >Santa Fe District was ordered by the district court to
> >adopt a policy on football games that simply required
> >an election on whether to have a student-led prayer
> >(wrongly permitted by current 5th Circuit precedent),
> >their effort to enact a policy that permits students to
> >deliver either secular or religious remarks deserves a
> >charitable interpretation, particularly on a facial
> >challenge.
> >
> >Steffen Johnson
> >sjohnson at mayerbrown.com
> >
> >p.s. -- I get the list in a daily format, so if people could
> >copy me on any replies I would be grateful.
> >
> >
> >Doug Laycock's post said:
> >
> > >>> My positions have never been pro-religion or anti-religion.  I
> have
> > sought
> >to protect the religious liberty of all persons and to keep the state
> from
> >interfering with religion except when there is compelling need.   I
> have
> >read the record in the Santa Fe case; football prayer is only the most
> >visible example of a regime in which the state is pushing the
> majority's
> >religion at every opportunity, the students are harassing those not
> eager
> >to receive or participate in what is being pushed, and religious
> minorities
> >are oppressed.  What I have been told outside the record suggests that
> the
> >situation is worse, and more pervasive, than plaintiffs were able to
> prove
> >up in the very limited hearings; what they proved up is plenty bad
> enough.
> >What Santa Fe is doing is wrong, and defenders of religious liberty
> should
> >not be defending it.
> >
> >
> >
> >
> >Steffen N. Johnson
> >Mayer, Brown & Platt
> >190 South LaSalle Street
> >Chicago, IL 60603-3441
> >(312)701-7214
> >sjohnson at mayerbrown.com