Law student steps in for school prayer

Deseret News (Salt Lake City), Aug 18, 2003 by Laura Hancock Deseret Morning News

Arlen Shepherd lacks the experience of a trial attorney, but he's relying on his intelligence, luck and a little prayer.

The recent law school graduate is taking his alma mater, Granger High School, and the Granite School District to court in hopes of returning school prayer in certain situations.

Shepherd said he's not going after his high school. "There's no, 'Let's get them back.' There's none of that. I'm seeing where students' rights are being abridged."

Shepherd filed papers last month in 3rd District Court representing a Granger sophomore who wants to publicly pray in school. The court papers ask for a preliminary injunction from U.S. Supreme Court decisions in 1986 and 2000 that limited religious speech and prayer in school.

Shepherd acknowledges there are different rules for prayer in schools than in other government entities, but he says students' rights are violated.

Shepherd says there are two forms of speech in public schools: school speech, the public words and actions of administration and staff; and school-sponsored student speech, the public words and actions of students at school events such as assemblies or sports games.

When students attempt to use a school's public address system to pray at a sports game, assembly or other school-sponsored activity, Shepherd believes they have every right because the U.S. Supreme Court protects such speech when the topics are secular.

The Supreme Court has not protected such speech when it's religious, however, "and that's the rub," Shepherd says.

"The issue is equal protection. That is the first and most important issue."

Thus, the prayer in school issue may be interpreted through the 14th Amendment instead of the First Amendment. The 14th Amendment guarantees all people equal treatment in the eyes of the law, regardless of their backgrounds.

"We're not saying the school has to sponsor a student prayer. They have to treat school-sponsored religious student speeches as equal as they do school-sponsored secular speeches," Shepherd says.

Shepherd graduated from Thomas M. Cooley Law School in Lansing, Mich., in September 2002. He will be supervised on the case by attorney Aimee M. Thoman. He planned to take the state bar exam this summer.

"I had this class, we talked about these (Supreme Court) cases in detail, and my argument at the time was that it was student speech. Yes, it was school speech, but the nature of the speech was student speech and the (Supreme) Court made" the wrong decisions, Shepherd said.

Shepherd further researched the issue and wrote a paper. His law school professor disagreed but gave him an A.

Shepherd hopes 3rd District Court Judge Leslie Lewis, who has been assigned to his case, will grant the preliminary injunction against the earlier Supreme Court decisions.

If the decision is appealed to higher courts, the Supreme Court could ultimately face the same issue again.

Ed Firmage, a constitutional law professor at the University of Utah College of Law, said a Utah judge may have difficulty ruling on previous Supreme Court rulings because "federal law will trump what a state will do. A state court is obliged to follow the United States Constitution."

"He raises an interesting points that will be debated for some time," said Firmage. "He's got a very large uphill battle to convince the court."

Dani Eyer, executive director of the American Civil Liberties Union in Salt Lake City, thinks the judge will throw Shepherd's case out because the government has extensively dealt with the issue of prayer in schools.

"My feeling is this has already gone through the courts," she said. "It's pretty fairly well delineated."

Granite school district officials are not prepared to comment on the suit.

"Nobody has seen anything or knows anything of this situation. They have not heard of it at all," said district spokesman Frank Chaffin.

E-MAIL: lhancock@desnews.com