IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT A.M., a minor, by her Parent and Next Friend, JOANNE MCKAY, Plaintiff-Appellant, vs.

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1 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT A.M., a minor, by her Parent and Next Friend, JOANNE MCKAY, Plaintiff-Appellant, vs. TACONIC HILLS CENTRAL SCHOOL DISTRICT; DR. MARK SPOSATO, sued in his official capacity as Superintendent of Taconic Hills Central School District; DR. NEIL HOWARD, sued in his official capacity as Principal of Taconic Hills Middle School; Defendants-Appellees, On Appeal from the United States District Court for the Northern District of New York BRIEF OF AMICUS CURIAE AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE Ayesha N. Khan Alex J. Luchenitser Americans United for Separation of Church and State 1301 K St. NW, Suite 850E Washington, D.C Phone: (202) Fax: (202) khan@au.org / luchenitser@au.org

2 CORPORATE DISCLOSURE STATEMENT Amicus curiae Americans United for Separation of Church and State is a 501(c)(3) nonprofit corporation. Amicus has no parent corporation, and no publicly held corporation owns 10% or more of its stock. i

3 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT... i TABLE OF CONTENTS...ii TABLE OF AUTHORITIES... iii IDENTITY AND INTEREST OF THE AMICUS CURIAE...1 SOURCE OF AUTHORITY TO FILE...1 SUMMARY OF ARGUMENT...2 ARGUMENT...3 I. The Establishment Clause prohibits public schools from injecting prayers into school events, regardless of whether the prayers are delivered by adults or students...3 II. A.M. s responses to the School District s Establishment Clause defense are without merit...10 A. A.M. s proposed blessing was a prayer, reflecting a sectarian translation of the Bible and intended to proselytize...10 B. A.M. s role as co-class president would only have exacerbated the constitutional violation that would have occurred had she been allowed to give the Priestly Benediction...16 C. A disclaimer would not have rendered A.M. s planned Priestly Benediction constitutional...18 III. Compliance with the Establishment Clause is a compelling governmental interest...20 CONCLUSION...23 CERTIFICATE OF COMPLIANCE...25 ii

4 TABLE OF AUTHORITIES Cases ACLU of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471 (3d Cir. 1996)...6, 19 ACLU of Ohio Foundation v. Ashbrook, 375 F.3d 484 (6th Cir. 2004)...15 Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001)...17, 18 American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir. 1987) Bannon v. School District, 387 F.3d 1208 (11th Cir. 2004)...22 Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997)...16 Berger v. Rensselaer Central School Corp., 982 F.2d 1160 (7th Cir. 1993)...20 Borden v. School District, 523 F.3d 153 (3d Cir. 2008)...19 Brandon v. Board of Education, 635 F.2d 971 (2d Cir. 1980)...17 Bronx Household of Faith v. Board of Education, 650 F.3d 30 (2d Cir. 2011).. 21 Busch v. Marple Newtown School District, 567 F.3d 89 (3d Cir. 2009)...22 Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995)...20 C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198 (3d Cir. 2000)...21 Circle School v. Pappert, 381 F.3d 172 (3d Cir. 2004)...19 Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000)...8, 9, 20 Collins v. Chandler Unified School District, 644 F.2d 759 (9th Cir. 1981)... 6, 17 Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199 (D.C. 1997).. 8, 14 iii

5 Cooper v. U.S. Postal Service, 577 F.3d 479 (2d Cir. 2009)...19 County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989)...15, 19 Corder v. Lewis Palmer School District No. 38, 566 F.3d 1219 (10th Cir. 2009)...9 Curry ex rel. Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008)...22 Deveney v. Board of Education, 231 F. Supp. 2d 483 (S.D. W.Va. 2002)...8 Doe v. Duncanville Independent School District, 70 F.3d 402 (5th Cir. 1995).. 16 Doe v. Indian River School District, 653 F.3d 256 (3d Cir. 2011)...19 Does 1-7 v. Round Rock Independent School District, 540 F. Supp. 2d 735 (W.D. Tex. 2007) Edwards v. Aguillard, 482 U.S. 578 (1987)...15 Engel v. Vitale, 370 U.S. 421 (1962)... passim Fleming v. Jefferson County School District R-1, 298 F.3d 918 (10th Cir. 2002)...9 Florey v. Sioux Falls School District 49-5, 619 F.2d 1311 (8th Cir. 1980)...16 Gearon v. Loudoun County School Board, 844 F. Supp (E.D. Va. 1993).. 8 Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003)...15 Good News/Good Sports Club v. School District, 28 F.3d 1501 (8th Cir. 1994)...20 Green v. Haskell County Board of Commissioners, 568 F.3d 784 (10th Cir. 2009)...19 Hall v. Board of School Commissioners, 656 F.2d 999 (5th Cir. 1981)...7 iv

6 Ingebretsen ex rel. Ingebretsen v. Jackson Public School District, 88 F.3d 274 (5th Cir. 1996)...6, 14 Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989)...7, 15 Jones v. Clear Creek Independent School District, 977 F.2d 96 (5th Cir. 1992).. 8 Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989)...19 Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981), aff d mem., 455 U.S. 913 (1982)...7 Knight v. Connecticut Department of Public Health, 275 F.3d 156 (2d Cir. 2001)...22 Lamb s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)...20 Lassonde v. Pleasanton Unified School District, 320 F.3d 979 (9th Cir. 2003)...8, 9, 19 Lee v. Weisman, 505 U.S. 577 (1992)... passim May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105 (7th Cir. 1986).. 12 Marchi v. Board of Cooperative Educational Services, 173 F.3d 469 (2d Cir. 1999)...22 Marsh v. Chambers, 463 U.S. 783 (1983)...15 Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003)...15 Meltzer v. Board of Public Instruction, 548 F.2d 559 (5th Cir. 1977), aff d in part and rev d in part on other grounds en banc, 577 F.2d 311 (5th Cir. 1978)...7 Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009)...22 O Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979)...17 v

7 Peck ex rel. Peck v. Baldwinsville Central School District, 426 F.3d 617 (2d Cir. 2005)...20, 21 Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)... passim School District of Abington Township v. Schempp, 374 U.S. 203 (1963)...3, 5 Skarin v. Woodbine Community School District, 204 F. Supp. 2d 1195 (S.D. Iowa 2002)...8 Skoros v. City of New York, 437 F.3d 1 (2d Cir. 2006)...22 Smith v. County of Albemarle, 895 F.2d 953 (4th Cir. 1990)...19 Stein v. Oshinsky, 348 F.2d 999 (2d Cir. 1965)...22 Stone v. Graham, 449 U.S. 39 (1980)...19 Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1997), reaffirmed after vacatur and remand, 173 F.3d 120 (2d Cir. 1999)...15 Widmar v. Vincent, 454 U.S. 263 (1981)...20 Other Authorities Blessing, in Encyclopedia of Religion (Lindsay Jones ed., 2d ed. 2005)...11 James Forman, Jr., The Rise & Fall of School Vouchers, 54 U.C.L.A. L. Rev. 547 (2007) David Noel Freedman, The Aaronic Benediction (Numbers 6:24-26), in No Famine in the Land (James Flanagan & Anita Robinson eds., 1975).. 11 Leonard J. Greenspoon, Jewish Translations of the Bible, in The Jewish Study Bible, Oxford Biblical Studies Online (June 22, 2012, 12:00 p.m.), /obso div vi

8 Patrick D. Miller, Jr., The Blessing of God: An Interpretation of Numbers 6:22-27, Interpretation, July 1, , 11 Macy Nullman, Birkat Kohanim, in The Encyclopedia of Jewish Prayer (1993)...11 Numbers 6:24-26 (Douay-Rheims)...13 Numbers 6:24-26 (Aryeh Kaplan, The Living Torah)...13 Numbers 6:24-26 (New King James Version)...12 Numbers, Book of, in The Oxford Dictionary of the Christian Church (F. L. Cross & E. A. Livingstone eds., 2005)...11 Translations, in The Oxford Companion to the Bible (Bruce M. Metzger et al. eds.), Oxford Biblical Studies Online (June 22, 2012, 11:25 a.m.), vii

9 IDENTITY AND INTEREST OF THE AMICUS CURIAE * Americans United for Separation of Church and State is a national, nonsectarian public-interest organization based in Washington, D.C. Its mission is twofold: (1) to advance the free-exercise right of individuals and religious communities to worship as they see fit, and (2) to preserve the separation of church and state as a vital component of democratic government. Americans United has more than 120,000 members and supporters across the country. Since its founding in 1947, Americans United has participated as a party, counsel, or amicus curiae in numerous church-state cases, including many cases before this Court. Through both lawsuits and non-litigation means, Americans United regularly advocates on behalf of public-school students and their parents who object to the imposition upon them at public-school events or activities of a religious faith to which they do not subscribe precisely what appellant A.M. sought to inflict upon a captive audience here. SOURCE OF AUTHORITY TO FILE All parties have consented to the filing of this brief. * No party s counsel authored this brief in whole or in part. No party, party s counsel, or person other than amicus curiae, its members, or its counsel contributed money that was intended to fund the preparation or submission of this brief. 1

10 SUMMARY OF ARGUMENT Appellant A.M. sought to close her middle-school graduation speech with a well-known prayer Verses 6:24-26 from the Book of Numbers of the Old Testament often called the Priestly Benediction, the Aaronic Benediction, or the Priestly Blessing. If appellee Taconic Hills Central School District had allowed A.M. to do so, it would have violated the Establishment Clause of the First Amendment of the U.S. Constitution. The Supreme Court and the circuit courts have repeatedly struck down the injection of prayers into graduations or other public-school events. The School District, cognizant of the Establishment Clause and sensitive to the concerns of religious minorities, wisely prohibited A.M. from delivering her planned benediction. Some school districts are not so enlightened, however. In response to Supreme Court decisions that barred teachers and clergy from leading or offering prayers at school events, many localities attempted to circumvent the rulings by using students to lead or deliver the prayers. The courts have repeatedly rejected such efforts. In adjudicating this appeal, this Court should not only consider how its decision will affect school districts that respect Establishment Clause values, but also how its opinion will impact those that seek to find ways around the Clause and to inject religion into school events. 2

11 ARGUMENT I. The Establishment Clause prohibits public schools from injecting prayers into school events, regardless of whether the prayers are delivered by adults or students. In a well-known series of decisions, the Supreme Court has struck down the presentation of prayers and the reading of Bible verses at public-school events and activities. In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court invalidated a New York State regulation that directed public-school students to read a prayer aloud at the beginning of each school day in the presence of a teacher. The Court explained, When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. Id. at 431. In School District of Abington Township v. Schempp, 374 U.S. 203 (1963), the Supreme Court declared unconstitutional laws that directed public-school students to read verses from the Bible at the beginning of the public-school day. The Court noted that while the Bible may be presented objectively as part of a secular program of education for example, in a comparative religion or religious history class it may not be used as part of any religious exercise even with the consent of the majority of those affected. Id. at

12 In Lee v. Weisman, 505 U.S. 577, 580, 586 (1992), the Court held that it is unconstitutional for public schools to invite clergy to deliver prayers at middleschool and high-school promotion or graduation ceremonies. The Court explained that the Establishment Clause guarantees that government may not coerce anyone to support or participate in religion or its exercise. Id. at 587. The Court noted that there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Id. at 592. A prayer at a graduation ceremony, concluded the Court, places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation. Id. at 593. The Court concluded in Lee that, by injecting a prayer into a graduation ceremony, the State, in a school setting, in effect required participation in a religious exercise. Id. at 594. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation, said the Court. Id. at 596. The Court found it irrelevant that students are not required to go to graduation, for graduation is one of life s most significant occasions, so a student is not free to absent herself from the graduation exercise in any real sense of the term voluntary. Id. at 595. Nor would allowing students to remain apart from the ceremony at the opening invocation and closing benediction cure the violation, as graduation is an 4

13 environment analogous to the classroom setting, where the risk [of] compelling conformity is especially high. Id. at 596; see also Schempp, 374 U.S. at (allowing students to leave during classroom prayers did not render the prayers constitutional); Engel, 370 U.S. at 430 (same). Attempting to circumvent these Supreme Court decisions, some states and localities sought to inject prayer into public-school events by passing laws or policies that promoted prayer led, initiated, or delivered by students. But in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Supreme Court made clear that the principles of Lee, Schempp, and Engel apply equally to studentgiven prayers. The Court held that a school district violated the Establishment Clause by enacting a policy under which students were to vote on whether to have prayers delivered by students at school football games. 530 U.S. at , 301. The Court explained that the election mechanism and the use of a student to give the prayers did not insulate the school from the coercive element of the prayers (id. at 310), as the prayers would still have the improper effect of coercing those present to participate in an act of religious worship (id. at 312). The Santa Fe Court also ruled that the prayer policy communicated an unconstitutional message of school endorsement of religion because the prayers would be delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property, the prayers would be 5

14 broadcast over the school s public address system, and school banners and colors would be on display. Id. at In this context, stated the Court, an objective... student will unquestionably perceive the... pregame prayer as stamped with her school s seal of approval. Id. at 308. The circuit courts have likewise struck down the presentation of prayers by students at graduations and other public-school events. In ACLU of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471, , 1487 (3d Cir. 1996), the en banc Third Circuit invalidated a school policy under which prayers could be given at graduations if approved by a student vote, explaining that the policy coercively subjected dissenting students to prayer and communicated given the control school officials have over graduation ceremonies a message of endorsement of religion. Likewise, in Ingebretsen ex rel. Ingebretsen v. Jackson Public School District, 88 F.3d 274, (5th Cir. 1996), the Fifth Circuit held that a state statute permitting student-initiated prayers at compulsory and noncompulsory public-school events was unconstitutional, because it coercively imposed prayer upon captive audience[s] of students, and because it endorsed religion. In Collins v. Chandler Unified School District, 644 F.2d 759, (9th Cir. 1981), the Ninth Circuit declared unconstitutional a school district s practice of allowing a student council to present opening prayers at assemblies the council 6

15 planned and organized, noting that there is no meaningful distinction between school authorities actually organizing the religious activity and officials merely permitting students to direct the exercises, and concluding that the practice coercively imposed religion upon students and placed the state s imprimatur on prayer. In Jager v. Douglas County School District, 862 F.2d 824, 831 (11th Cir. 1989), the Eleventh Circuit struck down a school district s policy of allowing student volunteers and others to give pregame invocations at football games, ruling that [w]hen a religious invocation is given via a sound system controlled by school principals and the religious invocation occurs at a school-sponsored event at a school-owned facility, the conclusion is inescapable that the religious invocation conveys a message that the school endorses the religious invocation. In Meltzer v. Board of Public Instruction, 548 F.2d 559, 574 (5th Cir. 1977), aff d in part and rev d in part on other grounds en banc, 577 F.2d 311, 312 (5th Cir. 1978), and in Hall v. Board of School Commissioners, 656 F.2d 999, 1000 (5th Cir. 1981), the court invalidated school-district practices of allowing students to give daily prayers or Bible readings over school public-address systems. In Karen B. v. Treen, 653 F.2d 897, (5th Cir. 1981), aff d mem., 455 U.S. 913 (1982), the court held unconstitutional a statute and policy authorizing daily prayer in public-school classrooms by students who volunteer to offer a prayer. See also Does 1-7 v. Round Rock Independent School District, 540 F. Supp. 2d 735,

16 (W.D. Tex. 2007) (concluding that Santa Fe, 530 U.S. 290, overruled a Fifth Circuit decision that had allowed non-proselytizing, non-sectarian student-voted prayers at graduations, Jones v. Clear Creek Independent School District, 977 F.2d 963, 969 (5th Cir. 1992)); Deveney v. Board of Education, 231 F. Supp. 2d 483, (S.D. W.Va. 2002) (enjoining offering of prayer by student at graduation pursuant to vote of student class officers); Skarin v. Woodbine Community School District, 204 F. Supp. 2d 1195, 1198 (S.D. Iowa 2002) (issuing injunction prohibiting school choir from singing Lord s Prayer at graduation ceremony); Gearon v. Loudoun County School Board, 844 F. Supp. 1097, (E.D. Va. 1993) (prohibiting student-voted, student-written, and student-delivered prayers at graduations); Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199, (D.C. 1997) (holding unconstitutional proposed statute permitting nonsectarian, non-proselytizing student-initiated voluntary prayer, invocations and/or benedictions at graduation ceremonies). Two decisions, Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000), and Lassonde v. Pleasanton Unified School District, 320 F.3d 979 (9th Cir. 2003), have held in circumstances similar to those here that the Establishment Clause prohibits letting students give religious remarks at graduations. The students in Cole and Lassonde were entitled to give speeches at their graduation ceremonies by virtue of their class rank or as a result of a student 8

17 vote. Lassonde, 320 F.3d at 981; Cole, 228 F.3d at The schools required the students to remove proposed religious content from their speeches. Lassonde, 320 F.3d at 981; Cole, 228 F.3d at The Ninth Circuit held that permitting the religious remarks would have had an impermissibly coercive effect on dissenters, requiring them to participate in a religious practice even by their silence. Lassonde, 320 F.3d at 983 (citing Cole, 228 F.3d at 1104). Allowing the religious content would also have communicated school endorsement of religion, because the schools reviewed and approved all graduation speeches, school policies determined which students gave speeches, and the schools administered and oversaw the graduation ceremonies. See Lassonde, 320 F.3d at ; Cole, 228 F.3d at ; see also Corder v. Lewis Palmer School District No. 38, 566 F.3d 1219, 1229 (10th Cir. 2009) (where school has practice of pre-reviewing graduation speeches, selecting students to give speeches based on their academic standing, and supervising the graduation ceremony, the speeches are so closely connected to the school that it appears the school is somehow sponsoring the speech, and school did not violate student s rights by punishing her for including religious content in her graduation speech after school had cleared a non-religious version) (quoting Fleming v. Jefferson County School District R-1, 298 F.3d 918, 925 (10th Cir. 2002)). 9

18 Here, too, the School District would have violated the Establishment Clause if it had allowed A.M. to close her graduation speech with her planned prayer. The School District would have coercively imposed the prayer upon a captive audience of middle-school students and family members. And the School District would have communicated to the audience that it endorsed A.M. s religious message, for the District had a practice of reviewing all graduation speeches, the District selected A.M. to give a speech based on her position as a student-council president, the District organized and oversaw the graduation ceremony, the ceremony took place in the District s auditorium, and school banners and signs were on display at the ceremony. See J.A , , , II. A.M. s responses to the School District s Establishment Clause defense are without merit. A. A.M. s proposed blessing was a prayer, reflecting a sectarian translation of the Bible and intended to proselytize. A.M. attempts to minimize the religious content of her proposed remarks, depicting them as merely a blessing. E.g., Appellant s Brief at 9. But A.M. s proposed end to her speech may the LORD bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace is a Bible verse, 6:24-26 of the Book of Numbers of the Old Testament. See, e.g., Patrick D. Miller, Jr., The Blessing of God: An Interpretation of Numbers 6:22-27, Interpretation, July 1, 1975, at 240. This Bible verse is 10

19 referred to as the Priestly Benediction, the Aaronic Benediction, or the Priestly Blessing (we will use the first of these three terms henceforth). See id. at 240; Macy Nullman, Birkat Kohanim, in The Encyclopedia of Jewish Prayer 109 (1993); David Noel Freedman, The Aaronic Benediction (Numbers 6:24-26), in No Famine in the Land 35 (James Flanagan & Anita Robinson eds., 1975). The Priestly Benediction is a blessing prayer, a prayer for God s providential care of the community. Miller, supra, at 248, 250. It is commonly used in the liturgy of the Christian Church and is well-known to laypersons. See id. at 240; Numbers, Book of, in The Oxford Dictionary of the Christian Church (F. L. Cross & E. A. Livingstone eds., 2005). Attempting to minimize the religious significance of the Priestly Benediction denies its essential core [t]he religious element is the most important component of blessing, since without it the other elements, verbal or nonverbal, cannot become a blessing. Blessing, in Encyclopedia of Religion (Lindsay Jones ed., 2d ed. 2005). The prayer that the Supreme Court struck down in Engel was somewhat similar to the Priestly Benediction, also short and asking for God s blessings: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country. See 370 U.S. at 422. The Court noted, There can, of course, be no doubt that [this] invocation of God s blessings... is a religious activity.... It is a solemn avowal of divine faith 11

20 and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious.... Id. at Likewise, the benediction the Supreme Court ruled unconstitutional in Lee, while longer than A.M. s Priestly Benediction, only had two references to God or Lord, thanking God and asking for his blessings. See 505 U.S. at 582. A.M. also contends that her Priestly Benediction was nonsectarian and nonproselytizing, and that allowing it therefore would not have violated the Establishment Clause. See Appellant s Brief at 9, This is neither factually nor legally correct. Factually, the version of the Priestly Benediction A.M. wished to use was taken from the New King James Version of the Bible a common Protestant version (see, e.g., Translations, in The Oxford Companion to the Bible (Bruce M. Metzger et al. eds.), Oxford Biblical Studies Online (June 22, 2012, 11:25 a.m.), whose relevant verses read: The LORD bless you and keep you; The LORD make His face shine upon you, And be gracious to you; The LORD lift up His countenance upon you, And give you peace. Numbers 6:24-26 (New King James Version). The translation in the Douay- Rheims Bible, which is sanctioned by the Catholic Church (see, e.g., James 12

21 Forman, Jr., The Rise & Fall of School Vouchers, 54 U.C.L.A. L. Rev. 547, 556 (2007)), reads quite differently: The Lord bless thee, and keep thee. The Lord shew his face to thee, and have mercy on thee. The Lord turn his countenance to thee, and give thee peace. Numbers 6:24-26 (Douay-Rheims). An Orthodox Jewish version of the Bible, The Living Torah (Leonard J. Greenspoon, Jewish Translations of the Bible, in The Jewish Study Bible, Oxford Biblical Studies Online (June 22, 2012, 12:00 p.m.), div1-1142), offers yet another interpretation: May God bless you and keep watch over you. May God make His presence enlighten you and grant you grace. May God direct His providence toward you and grant you peace. Numbers 6:24-26 (Aryeh Kaplan, The Living Torah). Not only did A.M. intend to give a version of the Priestly Benediction that reflects a particular religious faith, but she also intended it to spread her faith to others. At the time A.M. was preparing her graduation speech, she was learning about blessings in her church, including the Priestly Benediction. J.A A.M. testified in her deposition that she knew that some students in her class did not believe in Jesus Christ, and that it s my job to talk about God and see if they like it. J.A A.M. explained, In God s word it says that I should well, I 13

22 was put on this earth for a purpose and my purpose was to talk about God and try to get as many people to follow Him.... J.A Legally, in any event, even if A.M. s Priestly Benediction were nonsectarian and nonproselytizing, presenting it at a school event would still be unconstitutional. The Supreme Court noted in Engel, 370 U.S. at 430, that the fact that the prayer at issue there may be denominationally neutral cannot serve to free it from the limitations of the Establishment Clause. In Lee, the clergyperson followed instructions requiring his prayer to be nonsectarian and to be composed with inclusiveness and sensitivity (505 U.S. at ), but the Supreme Court held that this did not render his prayer constitutional, rejecting the proposition that at least in the public-school context a practice of nonsectarian prayer... is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint (id. at 589). In Santa Fe, the Supreme Court ruled that student-voted and student-given opening prayers at school football games are unconstitutional regardless of whether the prayers are nonsectarian and nonproselytizing. 530 U.S. at 298 n.6, 300, 317. See also Ingebretsen, 88 F.3d at 277, 279 (fact that prayers had to be nonsectarian and nonproselytizing did not save statute permitting student-initiated prayer at public-school events); Wimberley, 704 A.2d at 1200, & n.7 (same). 14

23 To support her argument that students may give nonsectarian and nonproselytizing prayers at school events, A.M. relies on Marsh v. Chambers, 463 U.S. 783, (1983), which upheld the presentation of nonsectarian and nonproselytizing prayers at the opening of sessions of state legislatures. See Appellant s Brief at But Marsh s allowance of opening prayer at legislative sessions was based on the unique history (463 U.S. at 791) of a practice deeply embedded in the history and tradition of this country (id. at 786) Congress approved opening its sessions with prayer at the same time it approved the Bill of Rights, and the practice has continued uninterrupted since then (id. at ). The Supreme Court, this Court, and other circuits have therefore limited Marsh to the context of legislative prayer and have repeatedly refused to extend it to publicschool cases or other areas. See, e.g., Lee, 505 U.S. at ; County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, (1989); Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987); Warner v. Orange County Department of Probation, 115 F.3d 1068, (2d Cir. 1997), reaffirmed after vacatur and remand, 173 F.3d 120 (2d Cir. 1999); ACLU of Ohio Foundation v. Ashbrook, 375 F.3d 484, (6th Cir. 2004); Glassroth v. Moore, 335 F.3d 1282, 1298 (11th Cir. 2003); Mellen v. Bunting, 327 F.3d 355, (4th Cir. 2003); Jager, 862 F.2d at

24 A.M. also relies on Doe v. Duncanville Independent School District, 70 F.3d 402, (5th Cir. 1995), where the Fifth Circuit upheld the performance of a song called The Lord Bless You and Keep You by a public-school choir. See Appellant s Brief at The Fifth Circuit s ruling, however, was not based on any conclusion that the song was nonsectarian or nonproselytizing. Rather, the Fifth Circuit emphasized that most choral music is religious and that barring such music would disqualify the majority of appropriate choral music from school-choir instruction. 70 F.3d at Duncanville is one of several decisions that, primarily for this reason, have treated religious music performances by school choirs differently from spoken prayers at school events. See also Bauchman v. West High School, 132 F.3d 542, (10th Cir. 1997); Florey v. Sioux Falls School District 49-5, 619 F.2d 1311, (8th Cir. 1980). B. A.M. s role as co-class president would only have exacerbated the constitutional violation that would have occurred had she been allowed to give the Priestly Benediction. A.M. was allowed to give a graduation speech by virtue of her position as a co-class president, elected by the student council. J.A. 240, 439. She argues that because she was chosen for her position by her fellow students, allowing her to give a prayer at her graduation ceremony would have been constitutional. See Appellant s Brief at But this argument flies in the face of Santa Fe, as there the Supreme Court concluded that it is unconstitutional for public schools to 16

25 empower[] the student body majority with the authority to subject students of minority views to constitutionally improper messages. 530 U.S. at 316. When a public school permits students selected by vote to impose religious messages on a captive audience of other students, it places the students who hold [minority] views at the mercy of the majority (id. at 304), undermines the essential protection of minority viewpoints (id. at 317), and likely serves to intensify the[] offense felt by minority students (id. at 305). See also Collins, 644 F.2d at 762 (prohibiting student-delivered prayers at assemblies planned and organized by a student council, for students must either listen to a prayer chosen by a select group of students or forego the opportunity to attend a major school function, and [i]t is difficult to conceive how this choice would not coerce a student wishing to be part of the social mainstream and, thus, advance one group s religious beliefs ); Brandon v. Board of Education, 635 F.2d 971, 978 (2d Cir. 1980) ( An adolescent may perceive voluntary school prayer in a different light if he were to see... the student body president... participating in communal prayer meetings in the captive audience setting of a school. ) (quoting O Hair v. Andrus, 613 F.2d 931, 936 (D.C. Cir. 1979)). This case is quite unlike Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001), upon which A.M. relies substantially. See Appellant s Brief at In Adler, the Eleventh Circuit held en banc by an 8-4 vote that a school 17

26 district did not violate the Establishment Clause by enacting a policy of allowing students to vote on whether to have a student deliver an opening or closing message at graduation, as well as to select that student by vote. Id. at 1332, The policy upheld in Adler prohibited school officials from reviewing, censoring, monitoring, or otherwise influencing the content of the student messages (id. at 1332, , 1341), while here the School District had a practice of reviewing all graduation speeches in advance (J.A. 240, 439). Moreover, in Adler, school officials did not choose which students delivered the messages (250 F.3d at 1332, 1336), but here it was the School District that decided that the student-council president would deliver a graduation speech (J.A. 240, 244, 439, 442). Thus, the Adler majority concluded that the student speech there was truly private (250 F.3d at 1339, 1341), while the graduation speeches here bear the imprimatur of the School District. This Court need not address, therefore, whether the dissenters in Adler were correct in concluding that the majority s decision in part because the policy at issue gave student majorities the authority to impose religious messages upon dissenting students conflicts with the Supreme Court s ruling in Santa Fe. See 250 F.3d at 1344 (Kravitch, J., dissenting), (Carnes, J., dissenting). C. A disclaimer would not have rendered A.M. s planned Priestly Benediction constitutional. A.M. contends that she could have constitutionally given the Priestly Benediction at her graduation ceremony if the School District had issued a verbal 18

27 or written disclaimer of endorsement of her remarks. See Appellant s Brief at 7. But courts have rejected the proposition that a disclaimer can render student-given prayers at graduation ceremonies constitutional, for a disclaimer does nothing to prevent or remedy the prayers coercive imposition of religious messages upon a captive graduation audience of students and family members. See Lassonde, 320 F.3d at ; Black Horse Pike, 84 F.3d at 1482; see also Doe v. Indian River School District, 653 F.3d 256, 285 n.16 (3d Cir. 2011); Circle School v. Pappert, 381 F.3d 172, 182 (3d Cir. 2004). What is more, where a government body s control over the property, event, or speech at issue communicates a message of governmental endorsement of religion as the School District s review of student speeches, selection of the student speaking, control over the graduation ceremony, presentation of the ceremony on school property, and display of school banners and signs does here a disclaimer cannot neutralize the message of endorsement. See Allegheny, 492 U.S. at 600; Stone v. Graham, 449 U.S. 39, 41 (1980); Cooper v. U.S. Postal Service, 577 F.3d 479, (2d Cir. 2009); Kaplan v. City of Burlington, 891 F.2d 1024, 1029 & n.5 (2d Cir. 1989); Green v. Haskell County Board of Commissioners, 568 F.3d 784, (10th Cir. 2009); Borden v. School District, 523 F.3d 153, 177 n.20 (3d Cir. 2008); Smith v. County of Albemarle, 895 F.2d 953, 958 (4th Cir. 1990); American Jewish Congress v. City of Chicago, 827 F.2d 120, 128 (7th Cir. 1987). 19

28 III. Compliance with the Establishment Clause is a compelling governmental interest. The Court can decide this case solely on the grounds that allowing A.M. to give the Priestly Benediction at the graduation would have violated the Establishment Clause. For complying with the Establishment Clause is a compelling state interest that is sufficient to defeat A.M. s free-speech claim, regardless of what level of scrutiny that claim may trigger. The Supreme Court stated in Capitol Square Review & Advisory Board v. Pinette, [t]here is no doubt that compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech. 515 U.S. 753, (1995) (plurality opinion of Scalia, J., joined by Rehnquist, C.J., Kennedy, J., and Thomas, J.); accord id. at 783 (O Connor, J., concurring); Lamb s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394 (1993); Widmar v. Vincent, 454 U.S. 263, 271 (1981). And this Court concluded in Peck ex rel. Peck v. Baldwinsville Central School District, 426 F.3d 617, 633 n.11 (2d Cir. 2005), that the constitutional prohibition of discrimination against speech based on viewpoint is subject to being trumped by the existence of a compelling state interest, such as avoiding a seeming Establishment Clause violation. Accord Cole, 228 F.3d at 1101; Good News/Good Sports Club v. School District, 28 F.3d 1501, 1508 & n.13 (8th Cir. 1994); Berger v. Rensselaer Central School Corp., 982 F.2d 1160, 1168 (7th Cir. 20

29 1993); May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1114 (7th Cir. 1986); see also C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 211 (3d Cir. 2000) (en banc) (Alito, J., dissenting on other grounds) ( a public school may even restrict speech based on viewpoint if it can show a compelling interest for doing so ). A.M. badly misreads Peck in arguing that this Court held there that a school would not have violated the Establishment Clause by allowing a student to display a religious poster in response to a class assignment, and that the school violated the student s free-speech rights by censoring the religious poster. See Appellant s Brief at 6. Rather, the Court remanded the case to the district court to ascertain whether the [school s] actions were necessary to avoid an Establishment Clause violation. 426 F.3d at 633. In any event, here, even if this Court does not rule that allowing A.M. s proposed Priestly Benediction would have violated the Establishment Clause, the judgment below should still be affirmed. The School District is correct that A.M. s graduation speech was school-sponsored speech that can be restricted based on legitimate pedagogical interests, and that concern about a potential Establishment Clause violation not just preventing a certain Establishment Clause violation qualifies as such an interest. See Appellee s Brief at 11-12, (citing, among other cases, Bronx Household of Faith v. Board of Education, 650 F.3d 30, 40 (2d 21

30 Cir. 2011); Marchi v. Board of Cooperative Educational Services, 173 F.3d 469, 476 (2d Cir. 1999); Nurre v. Whitehead, 580 F.3d 1087, 1095 (9th Cir. 2009)); see also, e.g., Skoros v. City of New York, 437 F.3d 1, (2d Cir. 2006) (school interest in complying with Establishment Clause supported constitutionality of school policy that prohibited inclusion of symbols depicting deities in school holiday displays); Knight v. Connecticut Department of Public Health, 275 F.3d 156, (2d Cir. 2001) (state s decision to prohibit state employees from promoting religious messages to clients they served was constitutional and supported by state s concern that allowing the religious messages would violate the Establishment Clause); Stein v. Oshinsky, 348 F.2d 999, (2d Cir. 1965) (students did not have constitutional right to engage in group, student-initiated prayers in classrooms); Busch v. Marple Newtown School District, 567 F.3d 89, (3d Cir. 2009) (school s decision to prohibit parent from reading Bible verses to child s class as part of show and tell project was constitutional and supported by Establishment Clause concerns); Curry ex rel. Curry v. Hensiner, 513 F.3d 570, (6th Cir. 2008) (student did not have right to sell candy canes with religious messages to other students as part of school project); Bannon v. School District, 387 F.3d 1208, 1217 (11th Cir. 2004) (school did not violate student s constitutional rights by requiring her to remove religious messages and symbols from mural students painted as part of school beautification project). 22

31 CONCLUSION A.M. s planned delivery of the Priestly Benediction at her middle-school graduation would have violated the Establishment Clause, by coercively subjecting a captive audience of students and families to prayer, and because the School District would have been viewed as endorsing A.M. s religious message in light of its control over the ceremony, the speakers, and their speech. Even if the Court chooses not to decide the case on this ground, however, amicus urges the Court to craft its opinion with one eye on the effect it may have on school districts and parents who want to bring prayer back into schools by using students to deliver prayers at school events. The Court should be careful not to suggest any roadmap for any such efforts, and should be mindful of the concerns of parents and students of minority faiths and beliefs who fear attempts by the majority to impose its religion upon them in the public schools. With these thoughts in mind, amicus respectfully asks the Court to affirm the district court s judgment. Respectfully submitted, By: /s/ Alex J. Luchenitser Date: June 29, 2012 Alex J. Luchenitser 23

32 Ayesha N. Khan, Legal Director Alex J. Luchenitser, Associate Legal Director Americans United for Separation of Church and State 1301 K St. NW, Suite 850E Washington, DC Phone: (202) Fax: (202) khan@au.org / luchenitser@au.org Counsel for amicus curiae 24

33 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 5,384 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because its body has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman font. /s/ Alex J. Luchenitser Date: June 29, 2012 Alex J. Luchenitser Counsel for amicus curiae 25