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Published in Print: March 17, 1999, as In Texas, It's Football Without a Prayer

In Texas, It's Football Without a Prayer

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In Texas, It's Football Without a Prayer

Texans have what has been described as a religious fervor for high school football. And Friday-night games at many high schools in the state start with a prayer over the public-address system. But a federal appeals court has ruled that student-led prayers at those games violate the U.S. Constitution.

Last month's 2-1 ruling by a panel of the U.S. Court of Appeals for the 5th Circuit was as unexpected as a fake punt. That's because the New Orleans-based appeals court previously has held that student-led prayers at graduation ceremonies pass constitutional muster under certain conditions.

In a 1992 ruling in Jones v. Clear Creek Independent School District, the court held that student-led prayers at graduation ceremonies pass constitutional muster as long as a majority of students want them, and the prayers are "nonsectarian" and "nonproselytizing."

That ruling came just months after the U.S. Supreme Court had ruled in Lee v. Weisman that clergy-led prayers at graduation ceremonies violate the First Amendment's prohibition against government establishment of religion.

The high court declined to review the Clear Creek ruling in 1993, which advocates of school prayer interpreted as a green light.

The latest case arose in the 4,400-student Santa Fe, Texas, school district, where a mother identified in court papers as Jane Doe challenged, on behalf of her two children, several alleged religious practices in the district, including its graduation and football-game prayers.

During the 1992-93 and 1993-94 school years, the district commonly allowed students to lead overtly Christian prayers at football games and graduation ceremonies, the Does alleged in a federal lawsuit in 1995.

After the suit was filed, the district amended its policy on graduation prayers, but it essentially adopted two versions. The first said that the senior class could decide whether to have prayers for the purpose "of solemnizing their graduation ceremonies."

That version was not quite in line with the 5th Circuit's ruling in Clear Creek.

The second part of the district's policy said that if the first version was blocked by a court order, the words "nonsectarian" and "nonproselytizing" automatically would be added to the policy. The district later that year adopted the same two-pronged prayer policy for high school football games.

A federal district court held that the district's preferred versions of its prayer policies did not pass muster. The prayers had to be nonsectarian and nonproselytizing, the court said.

In a Feb. 27 ruling in Doe v. Santa Fe Independent School District, the 5th Circuit panel essentially upheld the district court on graduation prayers. But when it came to football games, the appeals court majority threw a penalty flag.

The court said that a key element of its 1992 Clear Creek decision authorizing student-led graduation prayers was that a high school graduation was a once-in-a-lifetime event that was deserving of being solemnized with prayers.

But football games, the majority said, are "hardly the sober type of annual event that can be appropriately solemnized with prayer."

"Our decision in [Clear Creek] hinged on the singular context and singularly serious nature of a graduation ceremony," said the majority opinion by U.S. Circuit Judge Jacques L. Weiner Jr., which was joined by Circuit Judge Carl E. Stewart.

In dissent, Circuit Judge E. Grady Jolly launched a blitz against the majority's reasoning.

"There is a total absence of merit to the contention that the football policy might be constitutionally deficient when the graduation policy is not," Judge Jolly said. "It may well be headline news to the majority, but a 'solemn' ceremony is not the only occasion when many citizens feel the need for serious thoughts and words."

"At sporting events ... invocations can promote, among other things, honest and fair play, clean competition, individual challenge to be one's best, importance of teamwork, and many more goals," he wrote.

The ruling has stirred a ruckus in Texas, and the Santa Fe district is considering seeking a rehearing before the full 5th Circuit court.

The 5th Circuit covers Louisiana, Mississippi, and Texas. Although Texas jurists dominate the 17-member court, none participated on the randomly selected panel in this case. Judges Weiner and Stewart are from Shreveport, La. Judge Jolly is from Jackson, Miss.

Teacher Firing: A New York state school district did not violate the constitutional rights of a teacher by firing him for alleged sexual misconduct with students that occurred 24 years earlier, a federal appeals court has ruled.

There is a substantial public interest in "the protection of vulnerable schoolchildren from misfeasant or incompetent teachers," said the unanimous Feb. 17 ruling by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit.

The case involved Robert DeMichele, a long-time physical education teacher in the 2,100-student Greenburgh Central district north of New York City. In 1993, the district charged that Mr. DeMichele had engaged in inappropriate conduct with female students in the 1991-92 and 1992-93 school years. The teacher allegedly used sexually provocative language and had students sit on his lap. After a hearing, he was suspended without pay for a year and a half.

In 1996, after reading a newspaper article about Mr. DeMichele's suspension, two women approached the district superintendent and reported that they had been molested by the teacher when they attended his school in the 1971-72 and 1974-75 school years.

The district investigated and again charged Mr. DeMichele under state law with immoral conduct and conduct unbecoming a teacher. Mr. DeMichele denied the charges, but a hearing officer found that a diary kept by one of the women corroborated her allegations. The hearing officer found the teacher guilty and recommended he be fired.

Mr. DeMichele sued in federal court, arguing that his 14th Amendment right to due process of law was infringed because the nearly quarter-century-old charges left him unable to defend himself properly.

Both a federal district judge and the New York City-based 2nd Circuit court rejected his arguments. The appeals court said that under New York state law, there is no statute of limitations for removal of a teacher for actions that constitute a crime, regardless of whether they resulted in a criminal prosecution.

The court also found that there was no "actual prejudice" against Mr. DeMichele in disciplining him for the decades-old sexual misconduct. The school district didn't know about the misconduct until 1996, and it initiated disciplinary proceedings once it learned of the allegations, the court said.

And the teacher "did not show that he was deprived of any evidence that would have been available if the charges had been brought earlier," the court said.

--Mark Walsh mwalsh@epe.org.

Vol. 18, Issue 27, Page 12

Web Resources
  • Read the full text of Lee v. Weisman, the 1992 U.S. Supreme Court case that declared prayer at graduation unconstitutional.
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