Possibilities after Santa Fe

[Michael MASINTER]

The Court can answer some of the questions by taking Adler v. Duval County
School Board, http://www.law.emory.edu/11circuit/mar2000/98-2709.ma3.html
(11th Cir. 2000) (en banc), petition for certiorari filed, No. 99-1870
(May 22, 2000), sooner rather than later.  Although a GVR may be the most
likely result, the Adler majority seems wedded to the proposition that
because the board policy was facially neutral with respect to content, the
history preceding its adoption was irrelevant and the student election
made the content of the speaker's message purely private speech.

Adler was decided days before Southworth.  The plaintiffs timely sought
rehearing in light of Southworth, but the 11th Circuit denied the motion.
Given the tenor of the Adler opinion and its 10-2 margin, the result
following a GVR in light of Santa Fe and Southworth may not change.


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Tue, 20 Jun 2000, Lederman, Marty wrote:

> The devil's in the details.  Notably, your hypothetical policy would continue "to confine the substance of the [student] statements" to messages/expressions that are "appropriate for the occasion," adding that "of course it would be crucial that as applied there would be no after-the-fact attempt to encourage religious content."  You must be assuming (correctly, of course) that, as applied, school officials would find most religious expression, and prayer, "appropriate for the occasion," and would find *some* expression "inappropriate" on the basis of content.  What would be inappropriate?  Perhaps "partisan political" speech, perhaps criticism of school officials, perhaps encouragements to "kick the other team's ass," perhaps anti-football diatribes, perhaps "hate speech," perhaps even certain religious speech (such as Wiccan incantations).  We can all think of obvious, content-based distinctions that the school would make -- distinctions that could not be made in the true !
!
fo!
> ra cases such as Widmar, Lamb's Chapel, et al.  As long as it's the case that the school reserves the right to draw such distinctions -- to decide what's in bounds and what's not (sorry about the football metaphor) -- then the speech is, in part, attributable to the school, in that it has the school's imprimatur as "appropriate," in contrast to other speech that's not deemed appropriate.  (That's why Stevens' cite to Hazelwood was apt.)  And, under such a policy, if the school deems a student's religious speech or prayer "approrpriate," there's a serious Establishment Clause problem, even if the school doesn't expressly "encourage" religious content.
>
> What might be constitutional (at least absent the history and context that are present in Santa Fe) would be for a school board to adopt a policy in which students are chosen by lot (or, e.g., alphabetically) to say whatever they wished before football games -- without regard to content.  There are, regretably, few, if any, school boards that would permit such a thing.  Similarly, if a school board were gutsy enough to permit the valedictorian at a graduation ceremony to say *whatever she wanted* (but see Bethel v. Fraser, which I suspect reflects the "we reserve the right to penalize your speech" model that is used in more cases than not), there would not necessarily be an EC problem in those cases in which the valedictorian engaged in religious speech.  (I added "necessarily" principally in order to reserve the harder case where the valedictorian chooses to "lead" the assemblage in prayer, which is more like taking on the state function of running the assembly, rather than!
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 s!
> imply addressing it.)
>
> Marty Lederman
> (in my private capacity)
>
>
>
> -----Original Message-----
> From: Richard D. Friedman [mailto:rdfrdman at UMICH.EDU]
> Sent: Monday, June 19, 2000 10:45 PM
> To: RELIGIONLAW at listserv.ucla.edu@inetgw2
> Subject:
>
>
>  I don't think it's clear on either point.  (A) The decision appears to have
> been quite fact-based, and two of the facts that were different in the actual
> case from my first hypo (election by students) are (1) no attempt in the hypo
> to confine the substance of the statement beyond the generalization that it
> should be appropriate for the occasion (and of course it would be crucial that
> a applied there would be no after-the-fact attempt to encourage religious
> content), and (2) in the hypo, there's a new student for each game, rather than
> a choice for the entire season (a factor emphasized by the Court) -- so the
> entire oepration may appear more pluralistic.  I assume, for example, that if,
> as at a small high school in my town, every student is invited to make a
> statement at graduation, there is no Establishment Clause violation if some of
> them make statements with religious content. (Is it different if they also ask
> the audience to sing along, and it's to a religious song?)
>
>         (B) As to what the authorities would accept, I don't think they're in a
> position to be choosy.  They've just lost in the big time.  If they were coming
> to me for advice (not a position I'd relish, because I'm glad they lost and
> htink they should have) and asked what could they salvage, I might suggest that
> something like my second variation -- the selection of a student by lot for
> each game -- would offer a pretty good chance of being approved, because the
> perception of endorsement is diminished further by elimination of the
> election.  And the chance might be further enhanced if the identity of each
> selected student is kept anonymous, so that the student could choose without
> recrimination not to make a statement at all.  As to what it doesf or them, if
> Santa Fe is the type of Texas town in which a lot of people care passionately
> about making religious invocations before football games -- and I gather from
> the majority opinion that it is -- then presumably many of the students
> selected by lot would choose to make religious statements.  Of course, there's
> a problem:  If this policy is too successful, then it appears simply to be an
> evasion of the previous decisions preventing the school district from using
> more overt means of generating religious invocations.  This path dependence --
> you can't get half a loaf because you previously tried to get a full loaf and
> were told you couldn't -- is one of the interesting aspects of the majority
> opinion and, in my novice's view, of this whole area of law.
>
> Rich Friedman
> University of Michigan Law School
>
> At 05:24 PM 6/19/00 -0400, you wrote:
> >With the very big proviso that I've only read the syllabus and not the
> >decision, it seems as though the first proposal would still be found
> >unconstitutional and the second would be unacceptable to the authorities
> >who instituted the system in Santa Fe.
> >
> >Robin Charlow
> >Hofstra University School of Law
> >Hempstead, New York  11549
> >email: lawrdc at hofstra.edu
> >phone (516) 463-5166
> >
> >>>> "Richard D. Friedman" <rdfrdman at UMICH.EDU> 06/19/00 05:00PM >>>
> >
> >Pardon me if the conversation has moved beyond -- but I was prompted
> >to
> >subscribe to this list by the Supreme Court's decision today in Santa
> >Fe
> >Independent School District v. Doe, and I'm curious what people think
> >would
> >or should happen if the District came back with this policy:
> >Before each football season, a number of students equal to the number
> >of  home football games shall be selected from among volunteers [two
> >variations:  (a) by student vote, each student having one vote to
> >cast;  (b) by lot)], each one to have the option immediately before
> >one
> >game to
> >make a statement over the stadium's public address system.  The
> >statement  shall be an appropriate one for the occasion.  [Possible
> >addition:  The
> >school shall not reveal the identity of any student chosen, except to
> >the
> >student, until such time as the student makes the statement.]
> >
> >If nothing else, I guess that makes a potential exam question for those
> >who
> >teach the subject, which I no longer do.
> >
> >Rich Friedman
> >University of Michigan Law School
>
>