School Choice & Charters

Supreme Court Strikes Down Student-Led Prayer

By Mark Walsh — June 21, 2000 7 min read
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The U.S. Supreme Court has ruled that student-led prayers at high school football games violate the U.S. Constitution’s prohibition against a government establishment of religion.

The court’s 6-3 ruling on June 19 came in a case involving the Santa Fe, Texas, school district’s policy authorizing football game “invocations” to be delivered by an elected student speaker after the student body has voted on whether to have such messages.

“These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events,” Justice John Paul Stevens said in the majority opinion in Santa Fe Independent School District v. Doe (Case No. 99-62).

“An objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval,” added Justice Stevens, who was joined in his opinion by Justices Sandra Day O’Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

In his dissent, Chief Justice William H. Rehnquist said the majority opinion “bristles with hostility to all things religious in public life.” He was joined by Justices Antonin Scalia and Clarence Thomas. Advocates of strict church-state separation were elated by the ruling, while school prayer proponents were bitterly disappointed.

“This is a very strong statement that this kind of speech is not the private expression of students, but is promotion of religion with the resources of the government,” Barry W. Lynn, the executive director of Americans United for Separation of Church and State, a Washington advocacy organization, said in an interview.

Jay A. Sekulow, the lawyer who represented the Santa Fe district before the Supreme Court, said, “I think they got it wrong.”

“The disappointing aspect of it is [the majority’s] converting a private speaker into a government speaker,” added Mr. Sekulow, who is also the chief counsel of the American Center for Law and Justice, a legal organization affiliated with the religious broadcaster Pat Robertson.

The National School Boards Association had declined to take a formal position on the case, owing perhaps to differing views within its membership about school prayer. But Edwin C. Darden, a staff lawyer with the association, welcomed the ruling for its clarity and lack of hair-splitting concurrences.

“For school districts, this is the kind of helpful opinion that really gives some guidance,” Mr. Darden said

Not ‘Solemn’ Enough?

The Santa Fe case was the Supreme Court’s first ruling on a school prayer issue since the 1992 decision in Lee v. Weisman, which struck down clergy-led prayers at graduation ceremonies.

Since that ruling, there has been considerable activity in the public schools— and in the courts— centered on student-initiated, student-led prayers.

The current case involves the 4,400-student Santa Fe district near Galveston, which before 1995 allowed a student council chaplain to deliver prayers at football games at the district’s lone high school, Santa Fe High.

Those prayers, as well as prayers at graduation ceremonies and other alleged religious incidents and practices, were challenged in federal court five years ago by two families, one Roman Catholic and one Mormon.

In response to the suit, the school wrestled with drafting new policies for graduation and football- game prayers.

The district adopted policies that called for students to vote on whether to have student-delivered messages at both graduation ceremonies and football games. Students chosen to deliver such messages would be allowed to determine the content of the remarks themselves. The football-game policy made no mention of other sports.

In a ruling last year, the U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld the district’s policy regarding student-led prayers at graduation ceremonies, with the proviso that such prayers be “nonsectarian and nonproselytizing.” That language came from a 1992 ruling by the 5th Circuit court that first upheld student-led graduation prayers.

Student-led prayers before football games, however, were not permissible under the First Amendment, the appeals court panel said.

The appellate court said a key element of its 1992 ruling in Jones v. Clear Creek Independent School District was that a high school graduation was a once-in-a-lifetime event deserving of being solemnized with prayer. But a high school football game was “hardly the sober type of annual event that can be appropirately solemnized with prayer,” the appeals court said.

The Santa Fe district appealed the 1999 decision to the Supreme Court, seeking review of student- led prayers at both graduation ceremonies and football games. However, the court, without explanation, granted review only of prayers at football games.

‘Social Pressure’

In his majority opinion, Justice Stevens concluded that the student-led prayers at issue represent a government message, not private speech. And he was clearly troubled about the student vote on whether to have an invocation before football games and a vote on who would deliver it.

“The majoritarian process implemented by the district guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced,” he wrote.

Justice Stevens said the district’s history of having a student council chaplain deliver prayers prior to the lawsuit, as well as one version of the policy “candidly titled Prayer at Football Games,” made it “reasonable to infer that the specific purpose of the policy was to preserve a popular state-sponsored religious practice.”

He also rejected the district’s argument that students felt less compulsion to attend a football game than their high school graduation ceremony.

“To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is formalistic in the extreme,” Justice Stevens said.

Finally, he said, nothing “prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday. But the religious liberty protected by the Constitution is abridged when the state affirmatively sponsors the particular religious practice of prayer.”

But Chief Justice Rehnquist said the court was mistaken to strike down the district’s prayer policy on its face without giving it a chance to operate. He said students might vote not to have a speaker or choose one based on speaking ability or social popularity. The events of last fall at Santa Fe High School, in which the student speaker delivered Christian prayers before home football games, were not part of the record before the high court and thus, in theory, was not considered.

Justice Stevens said in response: “We refuse to turn a blind eye to the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer.”

Evolution Disclaimer

The court’s ruling does not directly address student-led prayers at graduation ceremonies. But the majority’s strong rejection of the student-initiated, student-led mechanism is likely to spell trouble for prayers at those events as well, legal experts said.

“I think this ruling casts serious doubt about the validity of so-called student-initiated graduation prayer,” said Mr. Lynn of Americans United.

Even Mr. Sekulow of the American Center for Law and Justice conceded that point.

“I think that Clear Creek is in trouble,” he said in reference to the 1992 appellate decision that upheld student-led prayers at graduation.

In another case involving religion and the schools from the 5th Circuit, the Supreme Court on June 19 declined to hear a Louisiana school district’s appeal of a ruling striking down a district policy requiring that a disclaimer be presented to students before all lessons about evolution.

The Tangipahoa Parish school board adopted the disclaimer in 1994. The disclaimer said “the lesson to be presented regarding the origin of life and matter is known as the scientific theory of evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the biblical version of creation or any other concept.”

The 5th Circuit ruled that the disclaimer was an unconstitutional advancement of the Bible’s account of creation.

Three justices dissented from the Supreme Court’s denial of review of the school board’s appeal. Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, said, “Far from advancing religion, the principal or primary effect of the disclaimer at issue here is merely to advance freedom of thought.”


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