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Debating Church-State Relations and Related Free-Speech Issues

Santa Fe: A School Prayer or Free Speech Case?
A perspective by Bernard James

Santa Fe Independent School District v. Doe , 120 S.Ct. 2266 (2000)

A Texas public high school had a formal policy of allowing students, if they wished, to pray or give a nonreligious message relating to sportsmanship or similar ideals before football games. The American Civil Liberties Union and some parents objected that the policy was unconstitutional.

Question: Can a school district permit “student-led, student-initiated” prayer before high-school football games?

The Supreme Court voted 6-3 that, even when attendance is voluntary and the decision to pray is made by students, pregame prayers are not private speech, and a football game is not a public forum for unbridled free expression.

Discussions of public school prayer cases have become a head-scratching exercise. The Supreme Court decision in the Santa Fe is the latest confusing case to come around.

On the surface of the school prayer debate is a remarkably simple question: If a student or group of students wishes to pray, should it have a right to do so? Unfortunately, one is quickly taken beneath the surface to an area of law where the correct answer to the question is yes and no.

Perhaps a better way to understand school prayer cases is to step back from the facts of Santa Fe and any prior case to look at the big picture of how much campus life has changed in America. It has undergone something of an expressive explosion, with a rich variety of cultures, thoughts, and interests having transformed most high schools into a marketplace of ideas.

Five Important Rules
Santa Fe is really an attempt by the Supreme Court to clarify the rules that schools must follow so that the marketplace of ideas on campus is protected and allowed to grow. Many of the rules were previously known, but the Court had not stated their precise relationship. At the present time, here are the rules that apply:

  1. Students do not lose their constitutional rights when they attend school. Expressive rights that are guaranteed under the First Amendment may be exercised on campus.
  2. Educators may allow the campus to be used for a wide range of student expression, even speech unrelated to the curriculum.
  3. Educators may interfere and limit student expression on any subject when it is disruptive or when it interferes with the educational process.
  4. When educators encourage student expression on issues unrelated to the curriculum, schools may not feature (force anyone to hear) the student-initiated speech in a way not available to other types of student expression.
  5. Educators are especially not allowed to feature only student religious speech since government-sponsored religious speech is not allowed by the Constitution.

Become acquainted with these rules. By applying them to what you’ve read so far about Santa Fe, you will soon see that this case is less about prayer in public school than it is about enforcing the free speech rules to bring about fair and diverse access to the school’s public address system by students wishing to speak on other subjects. The Court ruled that the policy that allowed student prayer before football games was flawed. The flaw was that prayer would always be approved, but other forms of student speech were far less likely to occur. The public address system was being used to express one type of expression, to the suppression of all other types. This type of government-sponsored favoritism should always raise serious constitutional questions.

It should be apparent that, in applying the five rules above, student prayer is not forbidden on public school campuses. As long as it is allowed on the same basis as other forms of student-initiated expression, the Constitution is not violated.

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