Student Fees/Santa Fe

[Lederman, Marty]

Michael McConnell writes:

"According to public forum doctrine, the state can establish the contours of the forum, but within those contours speech is permitted and is *not* deemed to be the speech of the state. Bethel and Hazelwood are not to the contrary. Those contours may be content-based, but they may not be viewpoint based. Thus, by definition they [by which I presume Michael means the permissible "contours" of student speech under the Santa Fe policy] satisfy Marty's criterion that the school board 'completely disclaims any power to control the viewpoint of the speech.'"

Of course, the state may create *subject-matter* "contours" in the forum without transforming the private speech into state (or state-approved) speech.  But the Santa Fe policy is not subject-matter based.  It does not, e.g., permit solely football-related speech (which might not, by the way, cover most prayers, unless they were germane to football).  If it did, the policy would (in the words of the AJC brief) allow "for a variety of perspectives or messages: that a football game is a raucous occasion for fun, for instance, or that `winning isn't everything, it's the only thing,' or that the other team is inadequate in some way that strikes high school students as humorous. But none of these messages is permitted under the Policy. Even within the category of game-related speech, the Policy singles out a very few preferred approaches and messages, including prayer, and excludes all the rest."

(For those who are further interested in this question, I highly recommend the AJC amicus brief, a long excerpt from which I set out below.)

I do not think the Santa Fe policy can fairly be viewed as anything but viewpoint-discriminatory.  (Certainly it is a lot more viewpoint-based than the limitation invalidated in Rosenberger.)  Imagine, for instance, the fora in Rosenberger or Widmar or Lamb's Chapel, and then imagine that the speech permitted in such fora had to be limited to "invocation[s] and/or message[s]" that are "consistent with the goals and purposes" of "solemniz[ing] the event" and "promot[ing] good sportsmanship and student safety."  Could anyone argue with a straight face that those "contours" are viewpoint-neutral?

That does not mean, of course, that the criteria violate the Free Speech Clause, because (as Kennedy emphasizes in Southworth) such limitations are perfectly permissible when it comes to the speech of the government itself, or government agents.  But if, because of the Free Speech Clause, the Santa Fe policy must be viewed as setting out "contours" for government (or government-approved) speech, then any prayer violates the Establishment Clause; and the policy itself -- by singling out "invocation" as permissible -- is facially invalid.  In other words, in my view Santa Fe is -- or should be -- an easy case; and (in partial response to Mark Tushnet) unless i've missed something, no one on list has even tried yet to defend it on any grounds other than those that would overrule some combination of Lee/Engel/Schempp.

Marty Lederman (in my private capacity)


Excerpts from pp. 15-23 of the AJC amicus brief (footnotes omitted):

Of the universe of possible messages that could be delivered before a football game, the Football Policy singles out "invocation," and only invocation, as expressly approved. This is not neutral as to religion. If a school district wants to create an open forum at the start of football games  for student speech, including, at the speaker's option, religious speech, the neutral way to do so is with a policy that simply provides for delivery of a "message" to be chosen by the speaker. A school district might even attempt an exhaustive list of the types of speech available to the student *16 speaker. See Doe v. Madison, 147 F.3d at 834 (upholding graduation policy allowing valedictorian to deliver " 'an address, poem, reading, song, musical presentation, prayer, or any other pronouncement' "). But specific designation of prayer and prayer alone in the Football Policy gratuitously singles out religious expression for special approval, and crosses the line between government neutrality and government favoritism. This was the principle behind Wallace v. Jaffree, 472 U.S. 38, 60-61 (1985), in which the Court invalidated an Alabama statute that authorized a moment of silence during the school day for "meditation or voluntary prayer" reasoning that inclusion of "voluntary prayer" reflected an intent to "characterize prayer as a favored practice." . . . .

A more fundamental problem with the Football Policy is that it does not allow for a broad range of speech by students, creating an open forum that naturally encompasses religious as well as secular speech. Compare Widmar v. Vincent, 454 U.S. 263, 269 (1981) (university forum "generally open" to wide spectrum of student speech); Mergens, 496 U.S. at 252 (same in high school); Rosenberger, 515 U.S. at 824 (funding for wide array of student journals); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 758-59 (1995) (state-owned plaza open to all speakers without regard to speech content). Instead, the Policy designates a very narrow range of messages that may be delivered by the student speaker, and then puts prayer into that specially approved category. This is not government neutrality toward religion.
 The Football Policy allows for delivery of those "invocation[s] and/or message [s]" that are "consistent with the goals and purposes" of the Policy. Those goals and purposes, in turn, are to "solemnize the event" and "to promote good sportsmanship and student safety." (The Policy also refers to establishing an  "appropriate" environment for the football game, which appears to be an allusion to the two purposes expressly listed: solemnization and promotion of good sportsmanship.) On its face, then, the Policy permits the following types of speech and only these types of speech: invocations (at least, those invocations that are suitably solemn and sportsmanlike), messages that solemnize the event, and messages that promote good sportsmanship.
 *19 A policy as restricted as this one does not put religious speech on an equal footing with comparable secular speech, giving religious speech no more  than "the same access to a public forum that all other [speech] enjoy[s]."  See Pinette, 515 U.S. at 763-64 (opinion of Scalia, J.). This Court's cases involving religious speech in open fora always have assumed that what is comparable to religious speech for purposes of an "equal access" analysis is ideological or political speech, or other speech that is likely to be controversial. See Mergens, 496 U.S. at 252 (access under Equal Access Act extends to "a Jewish students' club, a Young Democrats club, or a philosophy club devoted to the study of Nietzsche"); Pinette, 515 U.S. at 757-58 (square open for "free discussion of public questions" and used previously by "[s]uch diverse groups as homosexual rights organizations, the Ku Klux Klan, and the United Way"); Rosenberger, 515 U.S. at 841 (withdrawals from activity fund permitted "to cover the whole spectrum of speech, whether it manifests a religious view, an antireligious view, or neither"). The Football Policy, on the other hand, explicitly authorizes the expression of religious viewpoints through "invocations," but does not allow for expression of any other kind of ideological or political view. A student wishing to deliver a secular message is limited to one that solemnizes the event or promotes good sportsmanship -- leaving no room for, say, a speech endorsing a candidate for political office or even urging students to vote, much less the "antireligious" speech conjured up by one of petitioner's amici. See Brief for Amicus Curiae  Christian Legal Society at 28 (erroneously suggesting that Policy allows for expression of "whole spectrum" of student views, including "antireligious" views).

 *20 The case of the school valedictorian who may speak on any topic she chooses is distinguishable on this ground, as well. When a valedictorian or other graduation speaker may use her time to criticize United States involvement overseas, or to endorse single parenthood, or to deliver any number of ideological and controversial messages, then religious expression by the same speaker falls more neatly under the case law described just above and may be, in the words of Justice Souter's oft-quoted footnote in Lee, "harder to attribute" to the government. 505 U.S. at 630 n.8 (Souter, J., concurring). See Doe v. Madison, 147 F.3d at 834-35 (upholding graduation policy that allows valedictorian unrestrained discretion to express any view, including religious views). But this is a much easier case than that one. Here, religious views are permitted in a "forum" that allows for no other ideological or political views, creating an effect that is not neutral but partial to religion.

 It might be argued that the school can, in this context, favor religious speech over political and ideological speech because an "invocation" is related to the subject at hand -- a football game -- in a way that a political or  ideological speech is not. What is comparable to religious speech in this setting, the argument would be, is secular speech on the subject of football. But even assuming, arguendo, that "comparable" speech could be defined so narrowly, it would still be the case that the Football Policy favors religious speech over comparable secular speech. The subject of an imminent high school football game allows, in theory, for a variety of perspectives or messages: that a football game is a raucous occasion for fun, for instance, or that "winning isn't everything, it's the only thing," or that the other team is inadequate in some way that strikes high school students as humorous. But none of these messages is permitted under the Policy. Even within the category of game-related speech, the Policy singles out a very few preferred approaches and messages, including prayer, and excludes all the rest.

 *21 For that reason, the school district's insistence that the Football Policy does not favor "invocations" over "messages," Pet. Br. at 18, even if it were true (but see discussion in Part I.B.1, infra), would be beside the point. Petitioner has made a simple category mistake. The problem we identify here is not that the Policy favors prayer over the limited range of secular speech it permits. The problem is that the Policy favors prayer over all of the secular speech it does not permit: the wide range of political, ideological, and other speech that is precluded by a Policy limiting the ideas to be expressed to  those that promote solemnity and sportsmanship. It is as though the vocational education program at issue in Witters, instead of funding training in "professions, business or trades" generally, 474 U.S. at 483, funded only training at divinity and law schools. On the school district's account, the program remains neutral: religious and secular training are both available, with the choice left to the aid recipient. Pet. Br. at 18. But the program is not neutral as between religion and all of the professional and business educations excluded, and it is this more substantive kind of neutrality that the Court demanded in Witters as a condition of upholding aid to religious education. 474 U.S. at 488.

 Petitioner may attempt to avoid the conclusion that the Football Policy favors religious speech by arguing that the category of comparable secular speech in this case is not political or ideological speech, nor even all football-related speech, but only secular speech that solemnizes football games and promotes good sportsmanship. The forum created by the Policy, the argument would go, is limited to promotion of solemnity and sportsmanship, and the Policy includes all secular speech, as well as religious speech, that falls within forum boundaries. But as this Court explained in Rosenberger, a government program for transmitting so narrow and specific a message -- "This football game is a solemn event, for which good sportsmanship is appropriate" -- is not a forum  for private speech at all. 515 U.S. at 833-35. *22 Instead, it is a vehicle by which the government enlists private parties, like the doctors in Rust v. Sullivan, 500 U.S. 173 (1991), to speak for the government, "convey [ing] a governmental message" rather than their own views. Rosenberger, 515 U.S. at 833. On this understanding of the Football Policy, student speakers communicate the school's "own favored message," subject to the school's editorial control, id. at 834, but also to Establishment Clause constraints. And under those constraints, the message cannot be a prayer.

 This may in fact be the proper way to categorize student speech delivered under the Football Policy. That Policy certainly appears to reflect a "particular policy of [the school district's] own," id. at 833, about how football games are to be understood and played. The most recent Santa Fe football policy, adopted in 1999, confirms that the school district has in mind a very specific message for the student speaker: layered on top of the original Football Policy is the advice that the speaker may "welcome or greet the fans and the opposing team and/or commend them for their achievements. Consistent with the educational mission of the [school district], the pre-game message should be respectful, encouraging, and positive. The entirety of the speaker's message should serve these goals."  Brief for Amicus Curiae Marian Ward, App. D. Those are perfectly laudable  government goals, of course, but there can be no mistaking the fact that they are the government's, and that the speaker is not free to give a message that does not serve them. And treating student speech under the Policy as "governmental" explains why it is that the Policy may prefer some viewpoints (sportsmanship is more important than victory) over others (victory is more important than sportsmanship): although the government may never discriminate based on viewpoint when it regulates private speech, when the government enlists private parties to convey its own message *23 it is as though the government itself is speaking, and it is then "entitled to say what it wishes." Rosenberger, 515 U.S. at 833; see also Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 674 (1998) (when government speaks through third parties, content generally left to government's editorial discretion).

 But whether or not a student "invocation and/or message" delivered under the Football Policy is "governmental" in the sense described in Rosenberger, the government has "spoken" here already, through an official Football Policy that, as we have shown, favors religious expression. Instead of neutrality toward religion, the Policy reflects a preference for prayer over comparable secular speech. That is enough by itself to violate the Establishment Clause. See Wallace, 472 U.S. at 60; County of Allegheny v. ACLU, 492 U.S. 573, 593 (1989). The preference for prayer also makes it impossible to say that  prayers delivered under the Policy result solely from "the genuinely independent and private choices" of students, and are not attributable at least in part to the government's influence. This case, then, does not raise the question of whether entirely private decision-making might break the presumptive link between an official school event and a prayer delivered as a part of that event.

-----Original Message-----
From: Michael McConnell
Sent: Friday, March 24, 2000 8:48 AM
To: RELIGIONLAW at listserv.ucla.edu@inetgw2
Subject: Re: Student Fees/Santa Fe


Approved-By: volokh at MAIL.LAW.UCLA.EDU
Organization: University of Utah College of Law

Marty Lederman writes:
>
> 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.

This does not follow. According to public forum doctrine, the state
can establish the contours of the forum, but within those contours
speech is permitted and is *not* deemed to be the speech of the
state. Bethel and Hazelwood are not to the contrary. Those contours
may be content-based, but they may not be viewpoint based. Thus, by
definition they satisfy Marty's criterion that the school board
"completely disclaims any power to control the viewpoint of the
speech."

(I hasten to add that I do not consider Santa Fe an easy case, and
would not be surprised if the Court holds the policy
unconstitutional. The Court framed the question presented in a
peculiar way, and the weird procedural history, together with the
facial character of the challenge, makes it an awkward case for
resolution of real-world problems. But if the policy is struck down,
I do not think it will be on the basis of arguments such as the one
above. The real issue, I think, is whether the definition of the
limited forum will be deemed neutral, or -- because of its limited
nature and the real-world context -- will be deemed a
gerrymander. As long as the Court gets the analysis right, I do not
much care how it views the actual policy in Santa Fe.)




-- Michael McConnell (U of Utah)