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5/21/2004 Censorship of Religious Speech at Public School Graduation ExercisesWhether because of a misunderstanding of the requirements of the Establishment Clause, political correctness, or a fear of lawsuits by people and organizations that seek to eliminate religious expression from the public forum, many public high school officials continue to censor students’ religious expression during graduation exercises. The Rutherford Institute has assisted numerous students in defending their rights to freely express their religious beliefs at their graduation exercises. [P]rivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995). Thus, whether or not a school has opened a forum for speech, it may not censor speech solely on the basis of the speaker’s viewpoint. Perry Education Ass’n. v. Perry Local Educators’ Ass’n. , 460 U.S. 37, 46 (1983); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist. , 508 U.S. 384 (1993). Moreover, where, as in the usual case, a school has opened a forum for student speech by its tradition or policy of permitting class valedictorians, salutatorians, or others chosen without regard to their religious beliefs to speak during graduation exercises, even content-based restrictions on that speech must be “narrowly drawn to effectuate a compelling state interest.” Perry, 460 U.S. at 46. Decisions to censor students’ religious expression are often based on the students’ religious viewpoint. In these cases, a valedictorian or salutatorian’s speech deals with otherwise typical and appropriate topics for a graduation speech. For instance, June Brindley planned to speak to her classmates about how the events in their lives to date have culminated in their graduation from high school—a typical and appropriate topic for a high school valedictory address. The only difference is that June Brindley believes that God has been the hand moving behind the scene in her life. It was her desire to express that religious viewpoint that resulted in school officials’ initial censorship of her speech. Had she believed that her own hard work or the sacrifices of her family were the primary reason she had succeeded, school officials would not have raised questions. Such viewpoint-based censorship of speech is plainly unconstitutional. See Perry, 460 U.S. at 46. See also, Good News Club v. Milford Central School, 533 U.S. 98, 113 (2001) (doubting whether the government’s interest in avoiding an Establishment Clause violation could justify viewpoint-based discrimination against religious speech.) Moreover, even assuming that school officials could censor students’ religious speech if necessary to satisfy a compelling government interest, school districts rarely, if ever, have such an interest. Of course, the most common interest asserted by school officials is their desire to avoid an Establishment Clause violation. However, where student graduation speakers are selected on the basis of neutral, nonreligious criteria (such as their academic standing or class officership), such an Establishment Clause interest is lacking. School districts cannot claim that they must censor student speakers’ religious speech in order to avoid the mistaken perception that the school district endorses the students’ religious beliefs. The Supreme Court has explained: [T]here is a "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. We think 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 .... The proposition that schools do not endorse everything they fail to censor is not complicated. Bd. of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226, 250 (1990). Thus, school districts lack any valid Establishment Clause interest in deterring the mistaken perception that they endorse a student’s religious speech. Furthermore, even if a school district had such an interest in avoiding the mistaken perception that the school district endorsed a student’s religious speech, a simple disclaimer explaining that the student’s speech is not endorsed by the school district would be a less restrictive alternative to the outright censorship of the student’s speech. Such a disclaimer, noting simply that student speakers’ opinions are not endorsed by the school district, could be placed in the graduation program or presented orally by school officials or the student speaker herself. Although such disclaimers are probably unnecessary to avoid an Establishment Clause violation, the availability of this simple alternative further undermines the argument that censorship of students’ religious speech is necessary to avoid an Establishment Clause violation. Finally, school officials may not censor student religious speech on the ground that it may be offensive to some. While school officials may restrict student speech that “materially and substantially interferes with the requirements of appropriate discipline,” Tinker, 393 U.S. at 513, they may not simply censor speech out of a desire to avoid the displeasure of some. Tinker, 393 U.S. at 509. Furthermore, although school officials may restrict student speech that “invades or collides with the rights of others,” Id. at 513, private religious expression at high school graduation exercises does not implicate this concern. As private speakers who do not speak for the school district, student graduation speakers do not violate other students’ so-called freedom from religion. The Establishment Clause prohibits government from ordering prayer at graduation exercises, Lee v. Weisman, 505 U.S. 577 (1992), or in the classroom. Engel v. Vitale, 370 U.S. 421, 425 (1962). However, individuals have no constitutional right not to hear other private individuals publicly discuss their religious beliefs. See Adler v. Duval, 250 F.3d 1330, 1342 (11th Cir. 2001) (holding that religious speech or prayer at high school graduation exercises by private students did not violate the Establishment Clause.) U.S. Dept. of Ed. Guidelines on Constitutionally Protected Prayer in Public Schools: By censoring student religious speech at graduation exercises, school districts also jeopardize their federal education funding under the Elementary and Secondary Education Act of 1965. 20 U.S.C.S. § 7904(b). As a condition of receiving funds under this Act, local education agencies are required to certify in writing to their state educational agency that they have no policies that prevent or deny participation in constitutionally protected prayer as detailed in the guidance issued by the Department of Education. 20 U.S.C.S. § 7904(b). The Secretary of the Department of Education is authorized to provide guidance on constitutionally protected prayer and to withhold funds from recipients that are not in compliance with that guidance. 20 U.S.C.S. § 7904(a-b). On February 7, 2003, the Department of Education issued its Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools pursuant to this statute. This guidance states, in pertinent part: Prayer at Graduation School officials may not mandate or organize prayer at graduation or select speakers for such events in a manner that favors religious speech such as prayer. Where students or other private graduation speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, however, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. To avoid any mistaken perception that a school endorses student or other private speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker’s and not the school’s.Every local school district in the nation is required to certify to its state department of education that it is in compliance with these guidelines. Virtually every school district in the country complied with this requirement prior to the April 15 deadline set by the U.S. Department of Education. Thus, school districts that continue to prohibit student religious speech at graduation exercises violate the very guidelines with which they have confirmed their compliance. By violating students’ rights in this manner, they jeopardize their own federal funding. If your rights to free expression of your religious beliefs at your public school graduation ceremony are threatened, please contact The Rutherford Institute at 434-978-3888 or fill out our online form. Legal Feature: Resources on Religious Expression at Graduation Ceremonies Commentary: It’s Time to Stop the Graduation Phobia About the “G” Word _______________________________________ Related links: 2003 Year-in-Review Case Report Sign-up to receive The Rutherford Institute's Insider Report E-newsletter! Get your free copy of the Bill of Rights! Support the Fight! Give Today! Legal Feature Archives Recent Victories!
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