MEMORANDUM ON STUDENT RELIGIOUS SPEECH AT ATHLETIC EVENTS The Foundation for Moral Law One Dexter Avenue Montgomery, AL 36104 (334) 262-1245 Let your light so shine before men, that they may see your good works, and glorify your Father which is in heaven. Matthew 5:16 As in every autumn, Alabamians are caught up in the enthusiasm of the football season. The competing teams, the cheerleaders, the band, the halftime performances, the crisp autumn evenings it all comes together as a cherished and exciting tradition. But in some Alabama schools, one part of that tradition is missing this year the opening prayer. Several school districts have received letters from a Wisconsin-based group known as the Freedom from Religion Foundation ( FFRF ), an atheist organization whose goal is to drive religious expression out of the public arena. And right now, football stadiums seem to be the focus of their attack. The FFRF insists that prayers at public school football games violate the First Amendment to the U.S. Constitution, which, they claim, mandates separation of church and state but actually reads as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Establishment Clause does not mandate complete separation of religion from government nor does it prohibit the public acknowledgement of God. But does the Establishment Clause prohibit prayer at football games? Let s examine it more closely. I. Analysis of Court Decisions Concerning Prayer at Athletic Events The meaning of the First Amendment is of crucial importance. Those who settled the original thirteen colonies did not cross the Atlantic to get away from prayer at football games. In 1853 the U.S. Senate Judiciary Committee conducted an exhaustive study of the Establishment Clause and concluded that it referred to the connection with the state
of a particular religious society, by its endowment, at the public expense, in exclusion of, or in preference to, any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship, or religious observances. Nonetheless, by preventing the government from sponsoring one church to the detriment of all others, the Founders did not wish to see us an irreligious people. They did not intend to prohibit a just expression of religious devotion by the legislators of the nation, even in their public character as legislators; they did not intend to send our armies and navies forth to do battle for their country without any national recognition of that God on whom success or failure depends; they did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistical apathy. Not so had the battles of the revolution been fought, and the deliberations of the revolutionary Congress conducted. On the contrary, all had been done with a continual appeal to the Supreme Ruler of the world, and an habitual reliance upon His protection of the righteous cause which they commended to His care. The Reports of Committees of the Senate of the United States for the Second Session of the Thirty-Second Congress, 1852-53, pp. 1-4. Senate Rep. No. 32-376 (1853). (Emphasis added). Many who support public prayer today also do not consider such prayer to be a mere ritual or ceremony. Rather, they believe that prayer changes things. Just as prayer for our troops helps ensure success and safety in battle, so prayer for athletes helps ensure that they will play their best, practice good sportsmanship, and be free from injury. Unlike the FFRF, the Foundation for Moral Law believes that student-initiated prayer at football games does not violate the Establishment Clause and is protected by the Free Exercise Clause and the Free Speech Clause of the First Amendment and by the Alabama Religious Freedom Amendment. The complete ban on prayer demanded by the FFRF would, in the Senate Committees words, spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistical apathy. Contrary to the FFRF s one-sided and simplistic analysis, the Supreme Court s decision in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), did not invalidate student-initiated prayer at athletic events. Rather, the Court focused on the extensive state involvement in the prayers. First, the schools (an intermediate school and a junior high school) held an election, run by school officials, to determine whether a prayer would take place at that year s games. If the students voted to have prayer (as they did), the school officials would conduct another election to select a student to lead the 2
prayers. Because the elections were conducted by school officials acting in their official capacities, the Court majority concluded that there was too much state involvement in the student election system and, further, that the student election system insured that only majoritarian views would be expressed. The Court distinguished between government-sponsored prayers and student-initiated religious speech, noting that there 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. Id. at 302 (citation omitted). Where the message is the student s and not the school s, the Establishment Clause has less application, and the Free Exercise and Free Speech clauses control. A school-district policy which permitted a student message at the opening of a football game without prescribing the content of that message would be wholly constitutional. A recent well-reasoned appellate case from Texas upheld the practice of allowing football cheerleaders to paint messages on run-through banners, some of which contained Bible verses, on the ground that the message was that of the students, not the school. Kountze Independent School District v. Matthews, No. 09-13-251 (Tex. App. Sept. 28, 2017). 1 The FFRF s references to other Supreme Court decisions are equally simplistic and overbroad. Lee v. Weisman, 505 U.S. 577 (1992), did not invalidate all graduation prayers, only a specific situation in which a superintendent asked a rabbi to lead a prayer and gave him written guidelines as to what the prayer should include. Justice Souter, joined by two other Justices, stated in a concurring opinion: If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement of religion to the State. 2 Id. at 630 n.8. Even Engel v. Vitale, 370 U.S. 421 (1962), which held that the state could not compose an official prayer to be recited in every classroom, did not ban student-initiated prayer. After the Santa Fe decision, the United States Court of Appeals for the Eleventh Circuit (which includes Alabama) considered two cases involving religious speech in a public school setting. In both cases, the Eleventh Circuit held that the religious speech did 1 Schools may prohibit students from engaging in vulgar and lewd speech or advocating illegal activity without converting the student speech into the school s message. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986); Morse v. Frederick, 551 U.S. 393, 397 (2007). 2 Justice Scalia, joined by three other Justices, identified a solution to the problem: All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country. 505 U.S. at 645 (Scalia, J., dissenting). 3
not violate the First Amendment. In Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001), the Court held that a school board policy that permitted but did not require a student speaker to lead a prayer over the loudspeaker at graduation exercises did not violate the First Amendment. And in Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000), the Eleventh Circuit stated: Permitting students to speak religiously signifies neither state approval nor disapproval of that speech. The speech is not the State s either by attribution or by adoption. The permission signifies no more than that the State acknowledges its constitutional duty to tolerate religious expression. Only in this way is true neutrality achieved. Id. at 1317 (citation omitted). A complete prohibition of student religious speech at school events, as the FFRF desires, would violate the Free Exercise and Free Speech Clauses. The Establishment Clause does not require the elimination of private speech endorsing religion in public places. Id. at 1316. II. Principles to Be Derived from These Cases As we examine what the Court has said concerning prayer at athletic activities and other public school events, we may deduce the following general principles: 1. The Establishment Clause ( Congress shall make no law respecting an establishment of religion ) may limit school involvement in religious activity. 3 2. However, the Free Exercise Clause ( or prohibiting the free exercise thereof ) and the Free Speech Clause ( or abridging the freedom of speech ) afford protection to students rights to engage in prayer and other religious speech. 3. The school may not compel or endorse prayer or excessively involve itself in the process of determining whether to have prayer, who should lead the prayer, and what the content of prayer should be. 4. Prayer will be permitted if it is student-initiated and student-led. 5. Student speech at an athletic activity is more likely to be upheld as constitutional if the students are given an opportunity to speak on a subject of their choice (which could include religious expression) instead of the school designating that speech as a prayer. 3 See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45 (2004) (Thomas, J., concurring) (questioning application of the Establishment Clause, a federalism provision, to the states). 4
6. The school policy should include a disclaimer to the effect that statements made during this period represent the views of the speakers alone and not the official position of the school or its personnel, and that although all are requested to be silent and respectful during this period, no one will be assumed because of that silence and respect to have joined in or agreed with the speech. III. What Other Schools Have Done In an effort to preserve student prayer at athletic events in a way that does not violate the First Amendment as the courts have interpreted it, school districts have engaged in a variety of practices: In one district, instead of an opening prayer, the game announcer informed the audience that they would pause for a moment of silence. During that moment of silence, without any prompting or direction from school officials, students and other spectators arose and said the Lord s Prayer. In other districts, students or spectators have brought bullhorns so they could pray without using the school s public address system. In others, a student has been selected on neutral criteria (either by the administration or by the student body) to present opening remarks, which could include prayer. 4 The selection is made from a pool of students who have volunteered to present the opening remarks. In still others, the team (or those team members who choose to do so) gather for prayer before the game, either in the locker room or on the field. If the team members lead this prayer and the coach joins, that will probably be acceptable. If the coach initiates or leads the prayer, that could be more problematic. In sum, students may brightly shine the light of faith during school events. IV. Sample Policy A sample policy that allows for pre-game student messages, religious or otherwise as the student may choose, is set out below for your consideration and adaptation. Compare Adler v. Duval County School Bd., 851 F. Supp. 446, 449 (M.D. Fla. 1994) (policy on graduation messages). 4 If the selection is at random, it is possible that the selected student could give an anti-religious message or an occultic or Satanic prayer. This is less likely if the students make the selection through student government rather than school officials drawing names at random. Schools must weigh that possibility against the drastic action of abolishing pre-game student speech altogether. 5
Sample Athletic Event Student Message Policy A pre-game message, not to exceed two minutes, may be given at high school athletic events over the school s public address system by a student volunteer selected at random or on religion-neutral criteria from those who express a wish to deliver such a message. The content of the message shall be prepared by the student volunteer, shall not be monitored or otherwise reviewed by the School Board, its officers or employees, and is not an official expression of the school. The purpose of this policy is to allow students who wish to give a pregame message at athletic events the opportunity to do so without monitoring or review by school officials. Team members who wish to meditate or pray before a game either individually or with other members of the team or the opposite team, may do so either in the locker room or on the athletic field, provided that the meditation or prayer is student-initiated and student-led and provided further that no team member shall be pressured or coerced to participate in the meditation or prayer. CONCLUSION The Foundation for Moral Law presents this memorandum in a sincere effort to protect student pre-game speech, religious or otherwise, in a manner consistent with the United States Constitution and the Alabama Constitution as interpreted by the courts. Nothing herein shall constitute the practice of law. Readers are encouraged to seek competent legal advice before taking action on these matters. School officials are encouraged to share this memorandum with their attorneys. The Foundation s attorneys, who have studied and practiced constitutional law for many years, would be pleased to be of assistance to you and your school district. Please feel free to call us at (334) 262-1245. 6