Santa Fe independent school district v. Doe: Establishment clause chaos on the high school gridiron

St. John's Law Review, Winter 2001 by Chanice, Lawrence J

"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."

-Chief Justice William Rehnquist1

INTRODUCTION

A. Confusion in the Courts of Appeals

The first "right" bestowed upon the American people by the First Amendment provides: "Congress shall make no law respecting an establishment of religion... ."2 Although this phrase is plainly worded, it has beleaguered courts3 since coming into the limelight in 1947 when the Supreme Court upheld a

Board of Education resolution that provided transportation to both public and parochial school students.4 It was not until a decade and a half later that the Supreme Court handed down its first decision striking down prayer in public school.5

Since then, the Court has used a variety of theories to "cleanse" public schools of worship.6 In consequence, localities have attempted to overcome Establishment Clause challenges by crafting various types of schemes that would allow for prayer in public school.7 Upon judicial review in the federal courts,

differing policies caused a split in opinion in the circuit courts, thereby creating the need for a definitive answer from the Supreme Court.8 Recently, in Santa Fe Independent School District v. Doe,9 the Supreme Court attempted to provide an answer when it invalidated a school district's policy for prefootball game ceremonies.10

B. The Decision in Santa Fe Independent School District

The parties in Santa Fe Indep. Sch. Dist. endured a lengthy, turbulent relationship11 that came to a head in 1994 when the Santa Fe Independent School District (School District) began enacting a series of policies that permitted the recitation of invocations and benedictions at school events.12 Not more than a year later, the plaintiffs, a group of current and former school

attendees and their parents, initiated an action in the Federal District Court for the Southern District of Texas alleging that a variety of practices performed by the School District violated the Establishment Clause.13 The focus of their attack, however, was the School District's practice of allowing its students to recite religious messages at graduation ceremonies and high school football games.14 To ease the tension that surrounded the upcoming commencement exercises, the district court entered an interim order which provided that a " `non-denominational prayer' consisting of `an invocation and/or benediction' could be presented by a senior student or students selected by members of the graduating class."15

To comply with that order, the School District modified its existing policy for graduation exercises in May and July of 1995.(16) In August, the School District created a policy entitled "Prayer at Football Games."17 This policy provided that the students would hold two elections.18 The first election would permit the students to decide whether an "invocation" would be delivered, while the second election would enable them to choose their "spokesperson" who would decide upon the message to be delivered.19 The policy did not limit the students to invocations of a non-sectarian and non-proselytizing nature.20 It did, however, contain a fallback provision that provided for such constraints if the policy were to be enjoined.21 Shortly after the School District implemented the policy, the high school

students voted or a pre-game prayer and elected a student speaker for the presentation.22

In October of that year, the School District amended the August policy.23 More specifically, it changed the title of the policy to "Pre Game Ceremonies at Football Games."24 Additionally, it utilized neutral terms such as "messages," "statements," and "invocations" as opposed to religious terms like "prayer."25 Unlike the August policy, the students never held any elections under this policy.26 An order of the district court struck down the part of the policy that did not limit the students to the recitation of messages that were non-sectarian and non-proselytizing, but upheld the fallback provision that added such limitation upon the imposition of an injunction.27 Upon review of the district court decision, the United States Court of Appeals for the Fifth Circuit found that the entire policy violated the Establishment Clause.28 The School District appealed,29 and the United States Supreme Court granted certiorari.30 For the reasons set forth below, the Court

held that the policy violated the Establishment Clause.31

First, the Court considered whether the student messages were private or public speech.32 According to the School District, if the students' messages were deemed private speech, then the Establishment Clause would not apply.33 While agreeing that the Establishment Clause did not apply to private speech, the Court rejected the idea that the speech in this case was private.34 Instead, it found that "these invocations [were] authorized by government policy and [took] place on government property at government-sponsored school-related events."35 Although not all such speech can be attributed to the government, the Court found that the speech in this case was governmental in nature since "the District [had] failed to divorce itself from the religious content in the invocations."36 Finally, the Court held that although the policy claimed to have a secular purpose,37 the school's history with prayer policies and practices indicates its intention of furthering state-sponsored religion.38