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SEE YOU IN COURT! - May 2012

CABE Journal

May 2012

Authors: Thomas B. Mooney

It had been a long tough year in Nutmeg, but the end was in sight. Mr. Superintendent always enjoyed the graduation ceremony as he, Mr. Principal and the Board members send the graduating class from Nutmeg Memorial High School out into the wide world to make their mark. The profundity of the occasion never failed to touch Mr. Superintendent.

This year, the valedictorian is Peter Pious, a straight-A student and President of the “Word,” the Bible study club at the High School. Mr. Superintendent was relieved that such an upstanding young citizen would be giving the graduation speech, because he could relax and be confident that Peter would not go off script as can sometimes happen. Mr. Superintendent was, therefore, surprised to receive an agitated call from Ms. Principal, who was quite worried about Peter’s proposed speech.

“He is going to talk about God,” she told Mr. Superintendent in a rush. “What in heaven are we going to do?” Mr. Superintendent told Ms. Principal to calm down and to tell him exactly what Peter plans to say. “Well,” she began, “Peter wants to tell the audience about how the Scriptures have defined his life and given him guidance. He wants to read his favorite passages, and he wants to lead the congregation, I mean audience, in a non-denominational prayer. Oh. My. God. What are we going to do?”

Now it was Mr. Superintendent’s turn to get upset. “A prayer. We can’t permit that! I will be there momentarily.” Mr. Superintendent jumped into his car and drove right over to Nutmeg Memorial High. When He got to Ms. Principal’s office, he suggested that he and she meet with Peter and talk him out of his planned talk. Ms. Principal wondered out loud whether they should invite Peter’s parents to the meeting, but Mr. Superintendent insisted that they talk with Peter right away. They sent for Peter, and waited impatiently for him to arrive.

One would think that being called out of class to meet with the Principal and Superintendent would have been intimidating. But Peter was serene, even blissful, as he listened quietly as Mr. Superintendent explained that they could not have Peter talking about God in a public school graduation ceremony. When Mr. Superintendent finished, Peter responded politely, but with steely resolve. “God is my Guide, and He has inspired me with His Grace. I will be giving the speech as I described to Ms. Principal. I hope and pray that you will not create an ugly confrontation.”

With that, Peter stood up and left the office without another word. “We are between a rock and a hard place,” said Mr. Superintendent to Ms. Principal. “I have been doing this long enough to smell a lawsuit if we don’t let Peter give his speech. And I smell a different lawsuit if we do. Would it be inappropriate for us to do a little praying for guidance ourselves?”

Mr. Superintendent and Ms. Principal must pick their poison. What do you suggest they do? Shall they allow the speech as Peter proposed or prohibit it? 

                                                                    *        *        *

Actually, neither is the right answer. If the Nutmeg Public Schools have created a forum for the private speech of the valedictorian, they should not prohibit Peter’s speech. But they are not powerless, and they may edit the speech.

We should start with the basic principles. In relevant part, the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and this provision, as applied to the states through the Fourteenth Amendment, requires that school officials be neutral in matters of religion. When courts look to see if government actions conform to this principle, they often apply the three-part test announced in Lemon v. Kurzman (U.S. 1971): (1) is there a secular purpose for the government’s action, (2) does that action neither advance nor inhibit religion, and (3) does that action avoid excessive entanglement with religion. When these three questions can be answered in the affirmative, the action will be considered permissible under the First Amendment.

Often the analysis will focus on whether the action advances or inhibits religion, and over the years there has been a shift in what that means. In the 1960s and 1970s, the courts were leery of any reference to religion in the public schools. Bible study clubs, for example, were prohibited because, it was feared, students could mistakenly perceive permitting such clubs to be state support for religion. However, in 1990, the United States Supreme Court affirmed the Equal Access Act (thus permitting Bible study clubs), and since that time there has been a gradual shift toward greater tolerance of student religious activity.

This change applies only to students. School officials must avoid taking action that would be perceived as supporting religion. For example, twenty years ago the Court ruled that public high school administrators in Rhode Island violated the First Amendment when they invited clergymen to give “non-denominational” benedictions at graduation ceremonies because their actions promoted religious activities.

By contrast, students are generally free to express their religious views in the school setting, as a matter of both freedom of religion and freedom of speech. Here, we presume that the practice is to give the valedictorian of Nutmeg Memorial High School freedom to choose the topic for his graduation speech. If that is the case, it is hostile to religion to single out talk about religion for prohibition.

That said, school officials can and should reserve editorial control over graduation speeches. The topic and language used must be appropriate to the event. Students are not free to swear or talk about drugs or alcohol. School officials can demand to see a copy of the speech in advance, and many administrators have a cut-off switch at the ready, just in case a student goes off script.

Here, Peter wants to talk about his religious beliefs, and he may do so. But school officials can insist that he do so in a manner consistent with the celebratory nature of the graduation ceremony. Comments that make the audience uncomfortable (e.g., eternal damnation) need not be tolerated. Moreover, prayer is more than speech, and school officials can and must tell Peter that he may not lead the audience in a prayer. The key in such matters is to remember that students have the right to talk about their religious beliefs, and school officials may not categorically keep such speech out of the school setting. However, school officials remain able to assert editorial control over religious speech in the same manner as any other student speech.

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