When Chief Justice John G. Roberts Jr. reached his fifth anniversary on the U.S. Supreme Court in late September, observers took note of the court’s rightward shift during his tenure in a number of areas, including corporate spending on federal elections and the ways school districts may consider race in assigning students.
But at least one conservative constituency largely is still waiting for its day in the high court. Over the past two years alone, self-described religious-liberty groups on the right have asked the justices to hear appeals in some half-dozen cases involving religious expression in the public schools. In each case, the Supreme Court has refused.
The cases recently denied review have involved such subjects as religious music at public school holiday performances, students’ distribution of religious-themed items to their classmates, Christian-themed responses to classroom assignments, and religious messages in speeches at graduation ceremonies.
“Certainly, we would like to see more of these cases taken by the court,” said Mathew D. Staver, the founder and chairman of Liberty Counsel, a legal-advocacy organization based in Orlando, Fla. “We have been disappointed.”
What may be disappointing to conservative religious groups is not necessarily so to school administrators and their advocates, who in many cases were on the winning side of the cases turned down by the high court.
Edwin C. Darden, the director of education law and policy at Appleseed, a Washington-based network of public-interest justice centers, said it’s possible the Supreme Court would prefer to let some of the issues raised in student religious-expression cases percolate more in the lower courts.
“They may be saying it’s just not time to weigh in yet,” said Mr. Darden, who is a former senior staff lawyer for the National School Boards Association and is the incoming president of the Education Law Association, a group for lawyers as well as for professors who teach school law.
Half a dozen or so conservative legal organizations, as part of their advocacy work, regularly take up the cause of student religious expression—and, in some cases, nonreligious expression as well.
In addition to Liberty Counsel, others include the Alliance Defense Fund, in Scottsdale, Ariz.; the American Center for Law and Justice, in Washington; the Liberty Institute, in Plano, Texas, which is not affiliated with Liberty Counsel; the Rutherford Institute, in Charlottesville, Va.; the Southeastern Legal Foundation, in Marietta, Ga.; and the Thomas More Law Center, in Ann Arbor, Mich.
Mr. Staver, of Liberty Counsel—also the dean of the law school at Liberty University in Lynchburg, Va.—has brought two cases involving student religious expression to the Supreme Court recently.
In one, the justices declined to hear the appeal of a public high school valedictorian whose diploma was withheld after she discussed her Christian faith at her commencement ceremony. The student, Erica Corder, of Lewis Palmer High School in Monument, Colo., gave a 30-second valedictory message at the 2006 commencement that included her desire to tell her fellow graduates about Jesus.
“He died for you on a cross over 2,000 years ago, yet was resurrected and is living today in heaven,” Ms. Corder said, according to court documents. The speech was different from a draft that had been approved by school administrators.
Ms. Corder was not allowed to receive her diploma until she publicly apologized for her speech. With the help of Liberty Counsel, she sued the school district and various officials on First Amendment free-speech and free-exercise-of-religion grounds, but she lost in lower federal courts.
The appeal to the Supreme Court written by Mr. Staver and others said that the appellate court’s holding that a student’s valedictory speech constituted school-sponsored speech conflicted with Supreme Court precedents. In November 2009, the high court declined to hear the appeal.
“We feel that this one had a good chance and should have been taken by the [high] court,” Mr. Staver said. “More than just [censoring] graduation prayer, school officials punished her after she had graduated. That was very egregious.”
In a lower-court decision challenged by the Liberty Institute, a Texas school district limited when students could distribute written materials to their classmates. The Plano Independent School District’s 2005 policy largely limited distribution of materials to the 30 minutes before and after school.
Several Plano families argued that the policy was adopted in response to controversy over efforts by some students to distribute religious materials, including pencils inscribed with “Jesus is the reason for the season” and candy canes with cards that described them as having a Christian origin. Two lower federal courts upheld the district’s policy against a First Amendment challenge.
In appealing the case to the Supreme Court last spring, the Liberty Institute argued that the appeals court decision “threatens to wipe out any meaningful limits on school officials’ ability to restrict student speech.”
Kelly Shackelford, the organization’s president and chief counsel, said last week that his group is concerned that lower federal courts gradually are eroding the free-speech protections for students in public schools guaranteed by the high court’s landmark 1969 decision in Tinker v. Des Moines Independent Community School District. In that case, the court upheld the right of students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.
The justices turned down the appeal in the Plano case in June.
“There are attempts by certain [appeals court] circuits to really obliterate Tinker,” said Mr. Shackelford, whose group represents many religious students, as well as those seeking to express purely political messages. “We’re concerned that the [Supreme] Court is not taking anything.”
When the Supreme Court declines to hear an appeal, the justices are not ruling on the merits of the case. Even when a justice believes an appeal should be granted and his or her colleagues do not, public dissents are issued sparingly, and often strategically. It takes the assent of at least four of the nine members for the court to accept a case.
But in one recent appeal involving student religious expression, a member of the court filed a written dissent from the court’s refusal to take up the case. Justice Samuel A. Alito Jr., who joined the court in 2006, disagreed with the court’s stance on hearing the appeal of Kathryn Nurre, who along with other members of a student wind ensemble sought to perform an instrumental version of “Ave Maria,” by Fritz Biebl, at the 2006 graduation ceremony of Henry M. Jackson High School in Everett, Wash. The piece had been performed at other school events by the wind ensemble.
School administrators told Ms. Nurre and the wind ensemble to select a secular piece of music, which they reluctantly did. Ms. Nurre sued the superintendent of the 18,500-student Everett school district, alleging that the decision had censored her speech in violation of the First Amendment’s free-speech clause.
In a 2009 decision, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that because a graduation ceremony is an obligatory event for high school seniors, district officials acted reasonably in keeping the musical selections secular. But the panel said it was not ruling that religious music could never be played in public schools.
In his dissent from the Supreme Court’s March 22 decision not to review that case, Justice Alito said that despite a characterization by the 9th Circuit that the district had acted on viewpoint-neutral grounds, school officials prohibited the hymn “precisely because of its perceived religious message.”
“The 9th Circuit’s decision may provide the basis for wide-ranging censorship of student speech that expresses controversial ideas,” Justice Alito said in Nurre v. Whitehead.
John W. Whitehead, the president of the Rutherford Institute, which represented Ms. Nurre, said last week that he was surprised when the high court declined to take up the case.
“For some reason, the Roberts court does not want to get into this area,” said Mr. Whitehead, who is no relation to the school official who was the lead defendant in Ms. Nurre’s case. Justice Alito’s statement was “a ringing dissent” that may be an invitation to keep such religious-expression appeals coming, Mr. Whitehead said.
“I read outrage in it,” he said of Justice Alito’s tone in the dissenting statement.
Sending a Message?
Some conservative religious legal practitioners take issue with the premise that the Supreme Court has been inhospitable to religious-liberty claims.
Jay A. Sekulow, the chief counsel of the American Center for Law and Justice, described the recent appeals as being “on the margins” of significant religious-expression issues.
And he noted that the court took up a higher education religious-liberty case last term—although the outcome was not the one that religious conservatives had sought. In Christian Legal Society v. Martinez, the justices on June 28 ruled 5-4 that a law school could deny recognition to a Christian student group that refused membership to gays and lesbians.
But Mr. Sekulow, who has argued several cases before the Supreme Court involving religion and public education, said that Justice Alito’s dissent from the court’s rebuff of the Nurre case may be a sign that the court will take up one of the K-12 religious-expression cases sooner rather than later.
“Whenever you get a dissent from a denial of [review], it sends a significant signal,” Mr. Sekulow said.
A version of this article appeared in the November 03, 2010 edition of Education Week as Court Seen Balky On Religion Cases