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

Upon examining the policy's purposes, the majority in Santa Fe Indep. Sch. Dist. declared that the policy's words were not neutral due to the extent of the school's involvement in the policy and the use of words like "invocation."150 This policy, however, was not as sectarian as the statutes in Engel and Schempp, which specified the actual prayers and readings to be delivered.151 Instead, the School District's policy merely provided that the message, which could have been either religious or nonreligious, was to be chosen by the elected student.152 Unlike Engel and Schempp, the School District played no role in composing an official prayer.153

Moreover, the policy was certainly more content neutral than the statute that was upheld in Marsh, which allowed for prayer in the legislature.154 In fact, the policy was very similar to the Marsh statute since the student body, like the legislature, was to decide upon the speaker. Additionally, both the policy statement and statute implicitly adhered to the historical principles that permitted states to govern church-state relationships within their borders.

In Santa Fe Indep. Sch. Dist., the Court implored that the context surrounding the creation of the policy statement must be considered in determining the policy's purpose.155 Upon examining the context, the Court found that the "policy was implemented with the purpose of endorsing school prayer."156 This context did reveal that the policy was originally geared toward delivery of prayer.157 The School District officials, however, did not act blatantly like the governor and senator in the Wallace decision by explicitly declaring that the policy was for purposes of religion.158 Furthermore, as the dissent noted, the context of the Santa Fe Indep. Sch. Dist. policy should be

disregarded since it was conceivable that "the school district was acting diligently to come within the governing constitutional law."159

The second prong of the Lemon test provides that the policy's "principal or primary effect must be one that neither advances nor inhibits religion."160 This prong, however, can not even be addressed since no speech was ever delivered under the new October policy.161 With its decision, the Court "venture[d] into the realm of prophesy."162 It appears as if the majority was merely speculating when it determined that there would be an unconstitutional religious message under the new policy. Although such a message was delivered under previous policies,163 those policies allowed for religious messages. It would not be proper, however, to claim that the same type of message would be delivered under the new policy. Most significantly, unlike the public setting prayer precedent presented above, the Santa Fe Indep. Sch. Dist. court did not provide the district with the opportunity to operate constitutionally or unconstitutionally.

Likewise, since a religious speech never occurred, the Court could not have known if the government "coerce[d] anyone to support or participate in religion or its exercise" under a coercion analysis.164 Analogously, an endorsement test could not be administered here since the court could not have fathomed whether "the members of the listening audience [could] 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."165 Furthermore, in its speculative analysis, the Court turned a blind eye to a past statement in which it declared that "secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis."166