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Supreme Court expresses skepticism about student-led pre-game prayers

Tony Mauro
Special to The Freedom Forum Online

03.29.00

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Field next to S...
Field next to Santa Fe (Texas) Christian Church is mowed yesterday. U.S. Supreme Court is scheduled to hear arguments on school prayer today in case involving Santa Fe school district.

A majority of the Supreme Court today appeared ready to strike down a Texas town's policy that allows student-led invocations before public school football games.

Several justices in their questioning during oral arguments suggested that even though students recite the prayer at football games with minimal supervision from school officials, the invocations would still have the appearance of government sponsorship that could make religious minorities uncomfortable.

Based on the skepticism voiced today, the policy at issue in Santa Fe Independent School District v. Doe could meet the same fate as the clergy-led graduation prayer struck down eight years ago in Lee v. Weisman.

Santa Fe, a town near Houston, devised the policy in 1995 after parents challenged the earlier practice of having outright prayer led by a chaplain at games and other school events. Under the revised policy, students decide whether they want an invocation or message at football games and then elect the student to give it. Once elected, the student chooses the message he or she will give at a year's worth of football games.

The school district's lawyer, Jay Sekulow, insisted the policy is neutral and fosters free speech by students without the kind of official endorsement or involvement that has caused trouble in past school-prayer cases. "It's a hands-off policy," said Sekulow. "The individual student is the speaker," not the state.

But a majority of justices seemed dubious about that argument, with some suggesting the policy was a sham mechanism for encouraging prayer without seeming to do so.

"The school district has figured out a way to have a prayer," said Justice Stephen Breyer flatly.

Justice David Souter attacked the policy at length, arguing that no matter how neutral the policy seems, the end result is that "the school provides the forum and requires the students to sit there while a prayer is going on." Souter added, "What more do we need?"

Sekulow argued that the policy merely protected student free speech, and if the court strikes it down, that will amount to government censorship of speech that happens to have religious content.

Other justices seemed most bothered by the student-election mechanism that chooses the speaker for Santa Fe games. Just last week, the Supreme Court ruled in Board of Regents v. Southworth that a student election that allocates a portion of university student-fee money was problematic because it offered the kind of "majority rules" speech endorsement that the First Amendment is supposed to guard against.

Justice Sandra Day O'Connor mentioned Southworth in expressing her concern about the student-election mechanism in Santa Fe. The election in Santa Fe, she said, is "a very unusual arrangement." Breyer also voiced concern that the process would tend to exclude minority religions from ever being represented in the invocations.

Justice Anthony Kennedy, who like O'Connor is pivotal in church-state cases, envisioned an election campaign in which one student would promise prayer at football games and another would not. "That is the kind of thing our establishment clause wants to keep out of schools," said Kennedy. "The election thing doesn't work."

Sekulow said the school policy forbids electioneering on school grounds, but that did not seem to end the justices' concern.

Justice Ruth Bader Ginsburg also seemed dubious of Sekulow's neutrality argument. If the policy were truly neutral, she said, then over time it would be expected to foster a wide range of speech. "Is there any reason to believe," she asked, that "the full spectrum of speech" would be heard over several years at Santa Fe games?

Texas Attorney General John Cornyn, noting the policy had never taken effect, said there was "no way to know" what kind of invocations or messages would be expressed over the years. Cornyn argued in the case for Texas Gov. George W. Bush who filed a brief in the case on the side of the school district.

Cornyn and Sekulow also seemed to trouble several justices when they acknowledged that school officials retain a minimal level of control over the students giving the invocation. If a student used foul language at one game, they said under questioning, school officials could tell them not to repeat it at the next game. If that supervision is seen by the justices as tantamount to control over content, then they might view the invocations as government-sponsored speech.

O'Connor wondered whether the student-speech rationale could be used to introduce student-led daily prayer into the classroom. Cornyn said no, because football games, unlike classes, are extracurricular events.

Anthony Griffin, who represented the parents challenging the Santa Fe policy, disputed that distinction, arguing that football games are just as much part of the official school program as classroom instruction.

"No one has to go to a football game," Chief Justice William Rehnquist countered.

Griffin replied that attendance is mandatory for band members, cheerleaders and the team members themselves.

"Is anyone forced to be a band member or cheerleader?" asked Justice Antonin Scalia.

Griffin shot back, "When you're a teen-ager, yes."

Scalia and Rehnquist also expressed annoyance at the anonymity of the parents who challenged the policy — listed as Jane Doe in the case. "Is there a right to sue anonymously in federal court?" asked Scalia.

Griffin said the parents had received death threats and the trial judge had agreed to keep their names private.

Several other justices seemed to want more help from Griffin than he gave them on how to draw the line between permissible student speech and religious speech that violates the establishment clause. Breyer wondered how a football game invocation is different from invocations at court sessions, Congress, and even presidential inaugurations, all of which have been upheld. Griffin indicated that the difference might be that children are subjected to the speech at the football games.

In rebuttal, Sekulow returned to his free-speech argument — his main hope for winning. "There is not a religious-speech exemption to the First Amendment," Sekulow said.

A decision in the case could come anytime before the court term ends in late June or early July.

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