Supreme Court of the United States
Argued March 29, 2000.
Decided June 19, 2000
Case Text | Class Exercises
Justice STEVENS delivered the opinion of the Court.
Prior to 1995, the Santa Fe High School student who occupied the school’s elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season. This practice, along with others, was challenged in District Court as a violation of the Establishment Clause of the First Amendment…. [T]he school district [then] adopted a different policy that permits, but does not require, prayer initiated and led by a student at all home games….
Respondents are two sets of current or former students and their respective mothers. One family is Mormon and the other is Catholic. The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment….
Respondents … alleged that the District had engaged in several proselytizing practices, such as promoting attendance at a Baptist revival meeting, encouraging membership in religious clubs, chastising children who held minority religious beliefs, and distributing Gideon Bibles on school premises. They also alleged that the District allowed students to read Christian invocations and benedictions from the stage at graduation ceremonies, and to deliver overtly Christian prayers over the public address system at home football games.
On May 10, 1995, the District Court entered an interim order…. [T]he order provided that “nondenominational prayer” consisting of “an invocation and/or benediction” could be presented by a senior student or students selected by members of the graduating class. The text of the prayer was to be determined by the students, without scrutiny or preapproval by school officials. References to particular religious figures “such as Mohammed, Jesus, Buddha, or the like” would be permitted “as long as the general thrust of the prayer is non-proselytizing.”…
In response … the District adopted a series of policies over several months dealing with prayer at school functions….
The August policy, which was titled “Prayer at Football Games,” … authorized two student elections, the first to determine whether “invocations” should be delivered, and the second to select the spokesperson to deliver them…. it contained two parts, an initial statement that omitted any requirement that the content of the invocation be “nonsectarian and nonproselytising,” and a fallback provision that automatically added that limitation if the preferred policy should be enjoined. On August 31, 1995 … [t]he district’s high school students voted to determine whether a student would deliver prayer at varsity football games….The students chose to allow a student to say a prayer at football games.”… A week later, in a separate election, they selected a student “to deliver the prayer at varsity football games.”…
The … [October policy] is essentially the same as the August policy, though it omits the word “prayer” from its title, and refers to “messages” and “statements” as well as “invocations.”…
… We conclude, as did the Court of Appeals, that … the District’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause.
… The fact that the District’s policy provides for the election of the speaker only after the majority has voted on her message identifies an obvious distinction between this case and the typical election of a “student body president, or even a newly elected prom king or queen.”…
…While Santa Fe’s majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense.
Moreover, the District has failed to divorce itself from the religious content in the invocations. It has not succeeded in doing so, either by claiming that its policy is “one of neutrality rather than endorsement”… or by characterizing the individual student as the “circuit-breaker”… in the process. Contrary to the District’s repeated assertions that it has adopted a “hands-off” approach to the pregame invocation … its policy involves both perceived and actual endorsement of religion…. [T]he “degree of school involvement” makes it clear that the pregame prayers bear “the imprint of the State and thus put school-age children who objected in an untenable position.”…
The District has attempted to disentangle itself from the religious messages by developing the two-step student election process. The text of the October policy, however, exposes the extent of the school’s entanglement. The elections take place at all only because the school “board has chosen to permit students to deliver a brief invocation and/or message.”… The elections thus “shall” be conducted “by the high school student council” and “[u]pon advice and direction of the high school principal.”… The decision whether to deliver a message is first made by majority vote of the entire student body, followed by a choice of the speaker in a separate, similar majority election. Even though the particular words used by the speaker are not determined by those votes, the policy mandates that the “statement or invocation” be “consistent with the goals and purposes of this policy,” which are “to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.”…
In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the purpose of the message is “to solemnize the event.” A religious message is the most obvious method of solemnizing an event. Moreover, the requirements that the message “promote good sportsmanship” and “establish the appropriate environment for competition” further narrow the types of message deemed appropriate, suggesting that a solemn, yet nonreligious, message, such as commentary on United States foreign policy, would be prohibited…. Indeed, the only type of message that is expressly endorsed in the text is an “invocation”–a term that primarily describes an appeal for divine assistance…. In fact, as used in the past at Santa Fe High School, an “invocation” has always entailed a focused religious message. Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections… make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony….
The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property. The message is broadcast over the school’s public address system, which remains subject to the control of school officials. It is fair to assume that the pregame ceremony is clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot. The school’s name is likely written in large print across the field and on banners and flags. The crowd will certainly include many who display the school colors and insignia on their school T-shirts, jackets, or hats and who may also be waving signs displaying the school name. It is in a setting such as this that “[t]he board has chosen to permit” the elected student to rise and give the “statement or invocation.”
In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. In cases involving state participation in a religious activity, one of the relevant questions is “whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools.”… Regardless of the listener’s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval….
According to the District, the secular purposes of the policy are to “foste[r] free expression of private persons … as well [as to] solemniz[e] sporting events, promot[e] good sportsmanship and student safety, and establis[h] an appropriate environment for competition.”… [H]owever … the District’s approval of only one specific kind of message, an “invocation,” is not necessary to further any of these purposes. Additionally, the fact that only one student is permitted to give a content-limited message suggests that this policy does little to “foste[r] free expression.” Furthermore, regardless of whether one considers a sporting event an appropriate occasion for solemnity, the use of an invocation to foster such solemnity is impermissible when, in actuality, it constitutes prayer sponsored by the school….
School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”… The delivery of such a message–over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer–is not properly characterized as “private” speech.
The District next argues that its football policy … does not coerce students to participate in religious observances. Its argument has two parts: first, that there is no impermissible government coercion because the pregame messages are the product of student choices; and second, that there is really no coercion at all because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary.
… [T]he issue resolved in the first election was “whether a student would deliver prayer at varsity football games”… and the controversy in this case demonstrates that the views of the students are not unanimous on that issue.
One of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control…. [T]he “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere.”… The two student elections authorized by the policy, coupled with the debates that presumably must precede each, impermissibly invade that private sphere. The election mechanism … reflects a device the District put in place that determines whether religious messages will be delivered at home football games. The mechanism encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause. Although it is true that the ultimate choice of student speaker is “attributable to the students”… the District’s decision to hold the constitutionally problematic election is clearly “a choice attributable to the State”…
… Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. Moreover, we may assume that the District is correct in arguing that the informal pressure to attend an athletic event is not as strong as a senior’s desire to attend her own graduation ceremony.
There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience….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.”…
… the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship…. “[W]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”… The constitutional command will not permit the District “to exact religious conformity from a student as the price” of joining her classmates at a varsity football game….
The judgment of the Court of Appeals is, accordingly, affirmed.
Chief Justice REHNQUIST, with whom Justice SCALIA and Justice THOMAS join, dissenting.
The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause….
… [T]he Court … holds that the “policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.”… The Court’s reliance on each of these conclusions misses the mark.
First, the Court misconstrues the nature of the “majoritarian election” permitted by the policy as being an election on “prayer” and “religion.”… To the contrary, the election permitted by the policy is a two-fold process whereby students vote first on whether to have a student speaker before football games at all, and second, if the students vote to have such a speaker, on who that speaker will be…. It is conceivable that the election could become one in which student candidates campaign on platforms that focus on whether or not they will pray if elected. It is also conceivable that the election could lead to a Christian prayer before 90 percent of the football games. If, upon implementation, the policy operated in this fashion, we would have a record before us to review whether the policy, as applied, violated the Establishment Clause or unduly suppressed minority viewpoints. But it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation. It is also possible that the election would not focus on prayer, but on public speaking ability or social popularity. And if student campaigning did begin to focus on prayer, the school might decide to implement reasonable campaign restrictions….
But the Court ignores these possibilities by holding that merely granting the student body the power to elect a speaker that may choose to pray, “regardless of the students’ ultimate use of it, is not acceptable.”… The Court so holds despite that any speech that may occur as a result of the election process here would be private, not government, speech. The elected student, not the government, would choose what to say. Support for the Court’s holding cannot be found in any of our cases. And it essentially invalidates all student elections. A newly elected student body president, or even a newly elected prom king or queen, could use opportunities for public speaking to say prayers. Under the Court’s view, the mere grant of power to the students to vote for such offices, in light of the fear that those elected might publicly pray, violates the Establishment Clause.
Second, with respect to the policy’s purpose, the Court holds that “the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation.”… But the policy itself has plausible secular purposes: “[T]o solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.”… Where a governmental body “expresses a plausible secular purpose” for an enactment, “courts should generally defer to that stated intent.”… The Court grants no deference to–and appears openly hostile toward–the policy’s stated purposes, and wastes no time in concluding that they are a sham….
… [T]he school district was acting diligently to come within the governing constitutional law. The District Court ordered the school district to formulate a policy … which permitted a school district to have a prayer-only policy…. But the school district went further than required by the District Court order and eventually settled on a policy that gave the student speaker a choice to deliver either an invocation or a message. In so doing, the school district exhibited a willingness to comply with, and exceed, Establishment Clause restrictions. Thus, the policy cannot be viewed as having a sectarian purpose….
… Here … the potential speech at issue, if the policy had been allowed to proceed, would be a message or invocation selected or created by a student. That is, if there were speech at issue here, it would be private speech. The “crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,” applies with particular force to the question of endorsement….
Finally, the Court seems to demand that a government policy be completely neutral as to content or be considered one that endorses religion…. This is undoubtedly a new requirement, as our Establishment Clause jurisprudence simply does not mandate “content neutrality.” That concept is found in our First Amendment speech cases….
Suzie Smith was named valedictorian of your high school graduating class by virtue of her grade point average. She is a devout Muslim who has written her valedictorian address about the importance in her life of Mohammed and why she thinks students who abuse drugs and alcohol or belong to gangs need to discover Mohammed in their personal lives. She wants to finish by inviting her fellow graduates to come with her to her mosque before they leave for college or work. The principal is nervous about letting her give such a speech, but students in the past have always been allowed to speak about the topic of their choice, and their remarks are traditionally edited for length, clarity, and style only. The principal does not want to be sued by non-Muslim parents, but she also does not want to be sued by Suzie and her family.
Knowing that you are taking this class, the principal asks your advice on how to handle the situation without violating the establishment clause or Suzie’s free speech and free exercise of religion rights. How will you advise the principal to act in this majority Christian community? (What if Suzie were a Methodist? A Jehovah’s Witness? A Hare Krishna? A follower of Rev. Sun Myung Moon? Would that change your views?) Discuss the problem with your classmates and come up with what you think is sound legal and policy advice for the principal.
FOR THE CLASS: INTERVIEWING THE JUSTICES
Select two students to play the anchors of an evening television news talk show like Nightline. The anchors have an unusual assignment: they will be interviewing the nine Supreme Court justices about their opinions in Santa Fe v. Doe. Select one set of students to play Justice Stevens (who wrote the Court’s majority opinion) and the five justices who agreed with him. Select a second set of students to play Chief Justice Rehnquist (who wrote the dissenting opinion) and the two justices who dissented alongside him. Try to get to the bottom of the views of each justice. Why did those who sided with the majority think that the football invocation violated the establishment clause? How did they think that such statements affected students, team players, cheerleaders, and fans? And why did the dissenters object to the majority’s decision? The news anchors should invite additional student guests to play teachers and students to discuss their own thoughts about the case. (This exercise is for fun and learning; in reality, Supreme Court justices almost never discuss their opinions in public, and certainly never in a format like this.)