Student Fees/Santa Fe

[LoAndEd at AOL.COM]

Michael McConnell writes:

> I hate to define the graduation speaker as a state actor, since that
>  means the state can legitimately control his/her message.

Of course the school board *can* legitimately control the valedictorian's
message, at least under current doctrine.  See Bethel; Hazelwood.  For that
reason, the valedictorian's speech can include prayer, if at all, only if the
school board completely disclaims any power to control the viewpoint of the
speech.  As the AJC amicus brief in Santa Fe forcefully demonstrates, that's
one big reason why the Santa Fe policy is unconstitutional:  that policy only
permits the student speaker to express a very limited range of viewpoints at
the football game; and invocations are expressly singled out as one of the
types of messages that are in the favored/permitted class.

Marty Lederman (in my personal capacity)