ED 394 872

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MICUMbNI Ktunt,

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[First Amendment.]Amirican Bar Association, Chicago, Ill. SpecialCommittee on Youth Education for Citizenslip.ISSN-I066-019495

14p.American Bar Association, 541 North Fairbanks Court,Chicago, IL 60611-3314 ($2).Guides Classroom Use - Teaching Guides (ForTeacher) (052) -- Collected Works Serials (022)Legal/Legislative/Regulatory Materials (090)Update on the Courts; v3 n3 p1-13 Spr 1995

MFOI/PC01 Plus Postage.Churches; Church Role; Citizenship Education; CivilLaw; Civil Liberties; Civil Rights; ConstitutionalHistory; *Constitutional Law; Democratic Values;Freedom of Speech; *Government Role; GovernmentSchool Relationship; Intellectual Freedom; *LawRelated Education; Religion; Religious Education;Secondary Education; Social Studies; *State ChurchSeparation; Student Rights; Teacher Rights; TeachingMethodsAmerican Bar Association; Bill of Rights; *FirstAmendment; Supreme Court; *United StatesConstitution

Two articles in this instructional newsletterelucidate rulings by the United States Supreme Court, Circuit Courtof Appeals, and District Courts affecting state sponsored schoolprayer: (1) "First Amendment Prayer Pendulum"; (2) "First Amendment.

Rosenberger v University of Virginia." The newsletter provides thefacts of the cases, legal precedents, arguments presented by bothsides, significance of the decisions, as well as suggestions forappropriate teaching methods. Articles cover the First Amendmentissues of school prayer and public funding for student religiousmagazines through student activities fees. Teaching strategies forexamining both of these issues, including student handouts, areprovided. (LH)

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IN THIS ISSUE

First AmendmentPro% er Pendulwn Front Cmer

Student Actisities 5

First AmendmentRownberger v Unwenity ofVirginia 6

Teaching Strategy

Term LimitsU.S. Tenn Limits. Inc., v.Thornton and Bryant v. Hill 14

Student Activities

IndexVolumes 1-3 19

fr Schools asA

"Government"

Americans commonly thinkof government, or "the state,"as consisting of the federalexecutive, legislative, andjudicial branches, plus admin-istrative agencies. But govern-ment in the broad senseincludes all federal agenciesand bureaus, plus state, coun-ty. city, and township govern-ments. Schools are institu-tions run by local govern-ments and, thus, are bound bythe Constitution as are gov-ernmental entities per se. TheFirst Amendment's establish-ment clause calls for the sepa-ration of church and state.The meaning of this clause isin dispute with regard toschool prayer.

_

't**

American Bar Association Special Committee on Youth Education for Citizenship

First Amendment

Prayer Pendulum

PERMISSION TO REPRODUCE AN:DISSEMINATE THIS MATERIAL

HAS BEEN GRANTED BY

..As . A

4TO THE EDUCATIONAL SOURCEINFORMATION CENTER (ERIC)

Update on the Courts 3.3, 1995, pp. 1-5. 0 American Bar Association.

n the three years since theU.S. Supreme Court'sdecision in Lee v. Weisman,

112 S. Ct. 2649 (1992), thatschool-sponsored prayer at highschool graduations runs afoul ofthe establishment clause, litigationand legislation over prayer in pub-lic schools have exploded. Thelegal landscape now features adeepening split among federal cir-cuit courts, an escalating skirmishamong activist legal groups, andno small amount of confusion.

Congress, too, has gotten in onthe act. Senator Jesse Helms, R-N.C.. last spring attached to aneducation funding bill an amend-ment directing the government tocut off all federal money to statesor school systems that prevent stu-dents from taking part in "consti-tutionally protected prayer in pub-lic schools by individuals on avoluntary basis." That version didnot survive.

Students accuse schools oftrampling on their right of reli-gious expression, while others

U S DEPARTMENT OF EDUCAT ON ; , ; t th, h,t th,, ,,:),CO EJ,Ftt PeitVrt, .1^0 ,.0,0V0^V,t J.117,1:ft 1-1Jcit VI;114.11. acc 17,

EDUCATIONAL RESOURCES INFORMATIONCENTER ;MCI improper and illegal government

y(rhis document has been reproduced aseceived from the person or orgarwation

originating 4

0 Minor changes have been made loimprove reproduction quality

Points of view or opinions stated in thisdocument do not necessarily represent

9

endorsement of religion. Compet-ing ideas of what constitutes vol-untary prayer complicate the dis-cussion. But one key issue is thelegal ground that remains afterWeisman: If school-sponsoredprayer at high school graduationsis not constitutionally acceptable,is graduation prayer led by stu-dents permissible?

Close on the heels of Weistnan,the Fifth U.S. Circuit Court ofAppeals accepted that loophole aslaw in the three southern statesthat compose it: Louisiana,Mississippi, and Texas. In Jones v.Clear Creek Independent SchoolDistrict, 977 F.2d 963 (5th Cir.1992), it upheld a resolution thatallowed high school seniors tochoose a student volunteer todeliver at graduation ceremoniesan invocation and a benedictionthat are "nonsectarian and non-proselytizing in nature."

Tht court reasoned that studentcontrol of prayer removes the taintof government entanglement, andthat graduating high schoolseniors are less impressionablethan younger students. The

BEST COPY AVAILABLE

41

*SOICIAL co.wirtt. ovYoutkEeleic.arvontbnCifitetts hipAIAIRICAM *AR ASSOCIA11014* *

Ci 1995 American Bar Association. 541 N.Fairbanks Court Chicago. IL 60611-3314ISSN 1066-0194

Produced bv Creative Smuts Assmiates. Inc

Funding for this issue has been providedby the American Bar Association Fund forJustice and Education: v.c are grateful forits support.

Updaw on tiw Courts is published threetimes each year (fall. %inter. spring) h theAmerican Bar Association Special Com-mittee on Youth Education for Citizenship.Chair: Al Ellis: Director. Youth EducationPrograms: Christine Watkins: EditorialDirector, Youth Education Publications:Seva Johnson.

Update on the Courts helps classroomteachers and law-related education programdevelopers educate students about today'simportant U.S. Supreme Court and otherjudicial decisions, the legal issues the.vinvolve, and their impact on students' lives.The views expressed in this document arethose of the authors and have not beenapproved 11) the House of Delegates or theBoard of Governors of the American BarAssociation and, accordingly, should not beconstrued as representing the policy of theAmerican Bar Association. thc Fund forJustice and Education, or the SpecialCommittee on Youth Education forCitizenship.

Upti-te on the Courts is mailable onl aspart If the UPDATE PLUS publicationspackage. A one- ear subscription is $25 00For subscription information. contactYEFC1Arnerican Bar Association. 541 S.Fairbanks Court. Chicago. II. t3)611- 1314.

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2 UPDATE ON THE COURTS

Supreme Court denied certiorari,causing some religious organiza-tions to inaccu-rately suggest thatthis was the sameas upholding theappeals court caseon its merits.Clear Creek is thelaw in Louisiana.Mississippi. andTexas until theSupreme Courtspeaks on theissues.

The fallout from Jones has beennothing short of extraordinary. Inthe South. school districts havebeen energized by the news thatvoluntary, student-led graduationprayers will pass muster. A Galluppoll found 76 percent of publichigh schools in the South planningprayers delivered by students attheir graduation ceremonies.

Throughout the United States.the phrases "student-initiated."

"nonsectarian." and "nonprosely-tizing school prayer" have been

appearing in

Remember

when the Supreme Courtgrants a writ of certiorari, itagrees to review a casefrom a lower court.

resolutions andlaws. In April1994. for exam-ple. the Districtof ColumbiaBoard of Elec-tions and Ethicsaccepted a bal-lot initiative thatwould allowpublic schoolsto permit such

prayers during compulsory or non-compulsor> school-related studentassemblies, sporting events, andgraduation ceremonies.

The American Civil LibertiesUnion and People for theAmerican Way launched a pre-election challenge. but SuperiorCourt Judge José Lopez refused tostop the initiative. saying. "there isno cause to believe that govern-ment involvement will be perva-

27( No Opinion

73% Favor

School Prayer Poll

Yes or No to Voluntary

Prayer Amendment?

33CHigh

33%

LowCongress's Priority for the

AmendmentHow High

Shook! It Be?

10Source USA TODAY 'CNNGallup nationwide telephone 5

public opinion pollNovember 1994

1 020 adult respondentsMargin ot error13 percentage points

EST COPY AVALABLE

VOL 3 NO. 3

sive.- The ruling has beenappealed. while proponents collectsignatures to put the initiativebefore voters.

Some observers are alarmed bythe wave of activity. "I think whatis happening is remarkable andshows how much harm can bedone with one bad decision:* saysDouglas Laycock. a University ofTexas law professor and constitu-tional law scholar who has writtenextensively on religious liberty.

Laycock contends that Joneswas wrongly decided.that the students werenot acting indepen-dently but underschool officials' cloakof authority. The deci-sion, he says, seemsto thumb its nose atthe prohibition of Weisman.

In Mississippi. U.S. DistrictJudge Henry Wingate took atougher line in reviewing a sweep-ing school prayer statute thatattempted to push the student-ini-tiated logic of Jones even further.Ingebretsen v. the Jackson PublicSchool District, 864 F. Supp. 1473(S.D. Miss. 1994).

In a 43-page decision, Wingatestruck down a law that, like theDistrict of Columbia proposal.included language making prayerall but mandatory at events rang-ing from a formal graduation to"other school events.- Tennessee,Georgia, Virginia, and Alabamahave passed similar legislation.Although obliged to follow Jones,Wingate upheld only the sliver ofthe law that allows student-ledprayer at high school graduationceremonies.

Critics of the student-initiatedtrend argue that the Jone.s decisionignores the second key holding ofWeisman. In that case. theSupreme Court. affirming the

lower courts. tossed out the prac-tice of prayer at Nathan BishopMiddle School in Providence. R.I..not only because the school pickedthe cleric and gave guidelines forspeaking at the ceremony. but alsobecause the very nature of gradua-tion ceremonies involves morethan a hint of compulsion.

Justice Anthony Kennedywrote. "the undeniable fact is thatthe school district's supervisionand control of a high school grad-uation ceremony places public

pressure, as well aspeer pressure. onattending students tostand as a group or, atleast, to maintainrespectful silence dur-ing the invocation andbenediction."

Justice Kennedy also attackedthe idea of a high school gradua-tion as voluntary: "Absence wouldrequire forfeiture of those intangi-ble benefits which have motivatedthe student throughyouth and all her highschool years."

Some lawyers andlegal scholars ques-tion the differencedrawn between stu-dent-led and govern-ment-spons ore dprayer at officialevents at school. Ifthe government enti-ty, in this case, theschool or school system. delegatesits authority to organize an eventto students, the event retains themark of state action. they say.

Although the Fifth Circuit'sreading in Jones helped to catapultschool prayer to prominence, it isnot the law of the land. Otherlower courts have rejected thestudent-led rationale, including theThird U.S. Circuit Court of

1111111111MEN11111111111111IN

Jones . . . seems to

thumb its nose at the

prohibition of Weisman.

Appeals, which in June 1993enjoined a proposed student-initiated graduation prayer.

In late November 1994, theNinth U.S. Circuit Court ofAppeals, in a 2-to-I decision, alsorejected the reasoning in Jones.The court held that an Idaho pub-lic school's practice of allowingseniors to vote on a representativeto deliver a graduation prayer wasno more constitutional than invit-ing a priest to the podium. Harrisv. Joint School District No. 241.41 F.3d 447 (9th Cir. 1994).

While religioushave seized on Jones as ammuni-tion in the battle for public opin-ion, ironically, by authorizing acertain type of prayerstudent-initiated, nonsectarian, and non-proselytizingthe rule demandsthat someone police proposedprayers' content.

"It becomes content-based dis-crimination:* says Kelly Shackel-ford of Dallas, southwest regional

director for The Ruth-erford Institute, whichlitigates on behalf ofreligious freedom.

Students will be toldthey may not say"Jesus" or "God," forexample. When oneyoung Texas student,the son of a Baptistminister, was so direct-ed, he complained hedid not know how to

pray without saying "Jesus" andsued the school on grounds ofmental anguish. Shackelford said.Shawhan v. McAllen IndependentSchool District, No. 94-60115.

Shackelford sees another dan-gerous trend in these cases: Judgesare employing the reasoning usedto allow school censorship of stu-dent newspapers in HazelwoodSchool District v. 11.5.. 433 U.S.

organizations

Some lawyers and legal

scholars question the

difference drawn

between student-led

and government-

sponsored prayer at

official school events.

4VOL. 3 NO, 3 X UPDATE OM THE COURTS 3

299 (1977). The Supreme Courtallowed censorship in that case ongrounds that putting together thenewspaper was part of the schoolcurriculum.

In a recent Texas prayer case.for example. U.S. District JudgeRicardo Hinojosa held in anunpublished opinion that theMcAllen school district could con-trol the content of graduationprayers because such ceremonieswere an extension of curriculum.

But teachers' rights may also beat stake. In another of the manyrecent cases, the Fifth Circuitupheld post-game prayers on thebasketball courta traditionamong the high-profile Duncan-ville, Texas, girls' basketballteamas long as students startedthem and coaches, teachers, andother school officials did not leadthem, take part. or give the appear-ance of participation.

-We need direc-tion on teachers'rights.- Shackelfordsays. "Are employeessupposed to run fromthe room if they seekids praying? This isone of the biggestareas that has notbeen answered.

"We are concerned about teach-ers' rights to lead their own faithso long as they don't push theirbeliefs on others."

In trying to keep the linebetween church and state clear,can schools overstep their boundsand stifle private religiousexpression?

Students in Corpus Christi,Texas, who rallied around a schoolflagpole in September 1992 as partof an annual, national schoolpra,er rally were dispersed andtold by school officials that their

meeting was illegal. A lawsuit wastiled on the students' behalf in theSouthern District ofTexas. C'ameo Bishopv. Corpus ChristiIndependent SchoolDistrict, No. C-93-260.

"See You at thePole as the gatheringis called, takes placeevery September, usu-ally before the school day starts.Students in Texas began the eventin 1990 with about 45,000 partici-pants. The gathering now includesall school districts in the country,and participation in last year'srally may have capped 2 million.Principals, teachers, and otherpublic school officials may nottake part in the observance.

Another surge of activityinvolves legislation authorizing.

and in some cases evenmandating, a momentof silence in publicschools. Georgia's law,for instance, requiresschools to begin eachday with a minute ofsilence.

State legislaturesare mindful that in 1985the Supreme Court

struck down an Alabama statutebecause it was worded so as torequire students to use the time forprayer. Wallace v. Joffree, 472 U.S.38.

The new crop of statutes andlocal resolutions are an effort tocarve out safe legal ground withlanguage that is more content-neutral and discretionary.

In September 1994, the schoolhoard in St. Tammany Parish,Louisiana, for example, unani-mously approved in September asweeping school-prayer policy. It

includes a provision saying,"Teachers may announce a

moment of silentreflection in their classat beginning of eachday. Individual stu-dents are free duringthis time to reflectaccording to their ownconscience, as long asthey are silent."

According to theUniversity of Texas's Laycock,one guideline on school prayeremerges: "Students acting on theirown can do pretty much anythingthey want. Schools can't do any-thing."

"Students acting on

their own can do pretty

much anything they

want. Schools can't do

anYthing."

=1="We need direction on

teachers' rights.... Are

employees supposed to

run from the room if

they see kids prayine

Adapted from Pamela Coyle, "ThePrayer Pendulum," ABA Journal(January 1995): 62-66.

. . . News Brief ...Legal aliens seek securitythrough citizenshipSince California votersapproved Proposition 187 inNovember, a massive surge forcitizenship has spread throughthe nation's 10 million perma-nent legal aliens. Fearsprompting the increase inapplications include loss ofSocial Security benefits.Under current law, legal alienspay taxes as citizens do, andthey are entitled to most citi-zenship benefits except theright to vote and hold mostpublic offices.

4 UPDATE ON USE COURTS VOL. 3 NO. 3

STUDENTACMITIES

First Amendment

by Stephen A. Rose

I. Below are some terms that stu-dents must know in order tounderstand and be able to talkabout the legal issues involvingschool prayer. Before the entireclass reads the article on pages1-4. have a group of three tofive students read it and pre-pare a chart of the terms, withtheir definitions, adding otherterms from the article as theyfeel appropriate. The groupwill furnish the class with thechart as a reference to use dur-ing class discussions andassignments.

Tars

benedictionclericcompulsioncontent-neutraldiscriminationdiscretionaryestablishment clauseinvocationnondenominationalnonproselytizingnonsectarian

1. Have students read the articleon pages 1-4 as well as thebackground piece "ReligiousFreedom and Free ExpressionRights" on page 11. Review theU.S. Supreme Court's ruling inLee v. Weisnum. Consider whatis said about the schoorsselecting the cleric, social pres-sure to attend graduation, vol-

VOL 3 NO. 3

untary prayer at school-sponsored functions, and theconstitutionality of schoolprayer at public school gradua-tion ceremonies.

Compare and contrast theruling of the Fifth U.S. CircuitCourt in Jones v. Clear CreekIndependent School Districtwith the U.S. Supreme Court'sruling in Lee v. Weisman.

3. Have students review this listof prayer activities in publicschools and identify those theyagree with, those they don'tagree with, and those they areuncertain about.a. A cleric is invited by schoolofficials to deliver a nonde-nominational invocation and/orbenediction.b.Students invite a cleric tooffer prayers at graduationceremonies.c.Students initiate and leadnondenominational prayers atgraduation.d.Students read biblical pas-sages in a school-sponsoredtalent show.e.During school hours, stu-dents rally around the flagpoleas part of a national schoolprayer rally.f. A school marching band'shalftime show is religious innature, and the band marchesin the formation of a cross.g.Students are required to starteach day of school with amoment of silence.h.Students should not be sub-jected to any type of prayer inschool or at a school-sponsoredactivity.

In groups of three, have stu-dents share and explain their

selections. Then have thegroups determine which itemswould be allowed according toLee v. Weisman and Jones v.Clear Creek.

4. Have groups of three studentswrite a fictional. hut realistic,case study about school prayer(50-70 words). Have thegroups exchange cases and actas a court to determine ifprayer is allowable. Majorityand dissenting opinions arewelcome.

5. Read students the case belowand ask how they would advisethe school board to proceed.

In response to strong com-munity support for prayer atgraduation. Crest PublicSchool Board is consideringallowing student-initiated,-written, and -led nondenom-inational prayer at gradua-tion ceremonies this spring.Two seniors from the highschool surveyed the seniorclass of 57 students, and 50had no objections to prayerat graduation. while 7 hadstrong objections. These datawere presented to the boardin a petition to allow student-written and -led nondenomi-national prayer at gradua-tion. The board's legal coun-sel has advised againstprayer at the school's gradu-ation ceremony.

Stephen A. ROA(' is a professor ot

education at the University ofWisconsin in Oshlwsh.

UPDATE ON THE COURTS 5

First Amendment

Rosenberger v. University of Virijnia

Docket No. 94-329, argued March 1, 1995

Update on the Courts 3.3. 1995. pp. 6-9. 0 American Bur Association.

Petitioner: Ronald WRosenberger et al.Respondent: Rector and Visitorsof the University of Virginia et al.

roadened governmentactivity in the twentiethcentury has meant that

religious and governmental activi-ties have increasingly overlapped.Each of the Supreme Court's mod-ern establishment clause decisionsaddresses how American societyshould deal with this phenomenon.Rosenberger v. University ofVirginia will help to clarify theCourt's current position on thatquestion.

The First Amendment protectsfree speech rights but also pro-hibits laws that would establishreligion. This case asks theSupreme Court to decide if thefree speech rights of the studentpublishers of a religious magazinewere violated when the Universityof Virginia. relying on concernsabout establishing religion,refused to provide funds from itsstudent activities fees to partiallypay the costs of publishing themagazine.

Does the free speech clause ofthe First Amendment require theUniversity of Virginia to subsidizethe publication of a religious mag-

azine through its student activitiesfees? Or does the establishmentclause of the First Amendmentprohibit the University from doingso?

FACTSLike many state universities. theUniversity of Virginia requires itsstudents to pay a student activityfee. The resulting fund, which isadministered by the University'sstudent council, is used to supportmany student organizations.However. the University limits thegroups that may get support fromthe fund, even within the cate-gories for which funding is autho-rized. Groups publishing culturalmagazines may get support, butgroups whose publications arereligious may not. Similarly, polit-ical organizations and social orga-nizations such as fraternities maynot get funds, although organiza-tions publishing political-opinionmagazines may.

Ronald Rosenberger and otherstudents at the University foundedWide Awake Productions in 1990.The group publishes Wide Awake:A Christian Perspective at theUniversity of Virginia. As a stu-dent organization. Wide Awakehad free access to University com-puter facilities and meeting rooms.But when Rosenberger applied for

funding in 1991 to cover WideAwake magazine's printing costs.the student council's appropria-tions committee denied the appli-cation because the publication wasa religious activity and, therefore.not eligible for funding.

Other student organizationswith some religious focus havereceived funding from the studentactivities fund. For example. theMuslim Student Associationreceived funding that supported itspublication of a magazine contain-ing articles on Islamic doctrine,and the C. S. Lewis Societyreceived funding to support itsefforts to "promote interest in, anddiscussion of, various . . . topics,with a particular emphasis on thework of the 'Oxford Christians.According to the University, thesegroups were funded as groupsengaged in cultural, not religious.activities.

Rosenberger, as a member ofWide Awake Productions and aseditor in chief of Wide Awakemagazine, and two other studentssued the University in federal dis-trict court. They did not disputethe University's assertion thatWide Awake magazine was a reli-gious activity, but argued that theschool's decision to deny financialsupport for the publication fromthe student activities fund violatedtheir constitutional rights of freespeech and the free exercise ofreligion. In addition, they arguedthat the University's distinctionbetween cultural activities, whichcould be funded, and religiousones, which could not, was itselfunconstitutional.

Judge James Michael, Jr.. ruledfor the University. He concludedthat the denial of funding did notviolate Rosenberger's constitution-

6 UPDATE ON THE COURTSVOl. 3 NO. 3

al rights of free speech or freeexercise of religion. 795 F. Supp.175 (W.D. Va. 1992). On appeal.the Fourth Circuit affirmed.However, in its view, the denial offunding did impose a burden Onthe group's free speech rights: yetthe burden was nonetheless consti-tutionally permissible because pro-viding funding would have beenan unconstitutional establishmentof religion. 18 F.3d 269 (4th Cir.1994). In other words, there was a"compelling interest" for theUniversity, as an agency of thegovernment, to withhold funding.It is this decision that the SupremeCourt reviews, having granted thestudents' petition for a writ of cer-tiorari. 115 S. Ct. 417 (1994).

The Supreme Court has heldthat the establishment clause is notviolated when religious organiza-tions receive support through cer-tain general programs. In Zobrestv. Catalina Foothills SchoolDistrict, 113 S. Ct. 2462 (1993).the Court held that the establish-ment clause was not violated whenthe state provided a sign-languagetranslator for a deaf student attend-ing a religiously affiliated school.even though the translatorpaidby the statewould make reli-gious statements in some transla-tions. And in Bowen v. Kendrick,487 U.S. 589 (1988), the Courtupheld the constitutionality ofgrants to religious organizationsthrough the Adolescent FamilyLife Act to support their programsto combat teenage pregnancy.Some of these programs had reli-gious content.

The generally accepted under-standing of these cases is that theestablishment clause is not violat-ed because the programs have awide scope. and religious activitiesare only a small portion of the

POL. 3 NO. 3

overall government program.These facts mean that, althoughgovernment is in some sense sup-porting religious activities, it is notendorsing or demonstrating affir-mative approval of religion assuch.

These decisions, however, havesuggested that there are circum-stances under which supportingreligious organizations eventhrough general programs wouldbe an establishment clause viola-tion. Thus. in Bowen, the Courtsuggested that there would be aconstitutional problem if the pro-gram receiving support was as per-vasively religious as Wide Awakeappears to be.

SIGNIFICANCEThe Rosenberger case presents anintriguing problem. Under theCourt's free speech precedents. atleast sometimes the governmentniust include religious organiza-tions among the organizations towhich it makes facilities available.In one sense, therefore, govern-ment must subsidize religiousorganizations by making physical

space available to them instead ofrequiring them to rent space in theprivate market. Yet. under theCourt's establishment clauseprecedents. there are times whengovernment may not providedirect financial assistance to reli-gious organizations.

Why should one form of sub-sidy be required and the other pro-hibited? The primary distinction isbetween a subsidy that merelymakes government's physicalfacilities generally available to awide variety of organizations anda subsidy that makes governmentfunds available.

Many critics have questionedthis distinction. The Court's reso-lution of this case may indicate thedirection it is inclined to follow inresolving this conflict.

Adapted from Mark V Tushnet,"Free Speech and the ReligionClauses: Can a State UniversityRefuse to Use Student Fees toSupport a Religious Magazine?"Preview of United States SupremeCourt, no. 5 (10 February 1995):229-33.

*tofr

"Compelling Interest"refSometimes. a "compelling interest" on the part of government justi-fies its discrimination on the basis of viewpoint. In Rosenberger, theFourth Circuit found that funding Wide Awake would have violatedthe First Amendment's establishment clause. The compelling inter-est the government had in preventing such a constitutional violationjustified the University's action, in the Fourth Circuit's opinion. TheSupreme Court will issue its ruling on this and other issues inRosenberger this spring.

UPDATE ON THE COUNTS 7

Which line of precedent will the Supreme Court follow in deciding Rosenberger University of Virginia?

GOVERNMENT'S OWN SPEECH

Within quite broad limits:Government may choose messages it wishes to send.Government may discriminate against particularsubject matter and viewpoints.Standard of "reasonableness" applies.

PRIVATE SPEECHGovernment's choices relate to the type of forum involved:

For nonpublic forums, the government may discriminatebased on subject matter and viewpoint.For public forums, the government may not discriminatebased on subject matter and viewpoint, but it may restrictthe time, place. and manner of private speech.For limited-purpose public forums, the government mayconfine private speech to specific subjects, but it may notdiscriminate among different viewpoints within a subjectarea. For example. it may allow all plays but no politicalrallies. But it may not eliminate certain kinds of playsor allow certain kinds of political rallies.

TEST A: In Rosenberger, is theUniversity's discrimination against WideAwake reasonable in the sense that theschool is distributing its limited resourcesin the most socially valuable way inkeeping with its educational mission?

IntroductionWhen government refuses to pro-vide money to people who want toexercise their right of free speech,the Supreme Court has producedtwo lines of precedent that are insome tension. (See page 1 for thespecial definition of government inthis discussion of establishmentclause issues.) One line in. olvescases in which the Court treats theexpenditure of funds as a way inwhich government itself speaks.The other line involves cases inwhich the Court treats such expen-ditures as a way in which govern-ment facilitates the speech of pri-. ate parties. Different constitution-al tests apply depending on whichcharacterization of the case theCourt selects.

OPONTE ON THE mars

TEST B: In Rosenberger, are culturaland religious topics different sorts oftopics? Or are religion and culture withinthe same topic? Is there a "compellinginterest" that justifies the University'sdiscrimination?

I. Government's Own SpeechGovernment may speak through itsown employees, or it may speakthrough others it hires or subsi-dizes. If government itself isspeaking, the Court has said thatgovernment may choose the mes-sage it wishes to send and does notneed to send competing or alterna-tive messages. at least within quitebroad limits. For example, govern-ment may develop a program to"Just Say No to Drugs" withoutviolating the constitutional rightsof those who would like to say"Just Say Yes." Sini lady. govern-ment may subsidize family-planning organizations whosemessage is that abortion is not anappropriate method of family plan-ning without subsidizing organiza-

BEST COPY AVAILABLE

tions that believe abortion is anappropriate method. Rust v.

Sullivan. 500 U.S. 173 (1991).In spending money. therefore,

government may support or dis-criminate against particular view-points. There are some limits onviewpoint discrimination, how-ever. For example, no FirstAmendment scholar believes thatgovernment could explicitly pro-vide funds to only the Democratic(or Republican) party.

Generally, courts apply a "stan-dard of reasonableness" in assess-ing the constitutionality of speechfacilitated by governmental fund-ing choices. For example. if a stateuniversity decides that teachingmathematics is more important

VOL 3 NO. 3

than teaching sociology, it mayshut its department of sociologywithout violating the free speechrights of sociologists. Similarly, auniversity may have a departmentof philosophy but not a departmentof religion or theology, or an insti-tute for Islamic studies withouthaving an institute for Christianstudies.

In Rosenberger, the University'sposition is that its choice to prefercultural activities over political,social, and religious ones is a rea-sonable decision about the mostsocially valuable way to distributeits limited resources consonantwith its educational mission. eventhough its decision may in someways discriminate against reli-gious points of view.

If the issue is treated as one ofgovernment speech. the primaryquestion is whether or not thedistinction between cultural andreligious activities is reasonable.However, the difficulty of distin-guishing between Wide Awake'sreligious character and thepurportedly cultural character ofthe C. S. Lewis Society suggeststhat the University's attempt todistinguish between cultural andreligious activities may not bereasonable.

II. Nate SpeechIf the issue is treated as one ofgovernment facilitation of privatespeech, the Court asks whether theforum involved is a nonpublicforum, public forum, or limited-purpose public forum.

Note that, in law, many thingscan constitute a forum, including aplace, such as a street. a park. oreven mailboxes (see the follow-ing). Whether a fund, such as thestudent fund in question in

Rosenberger. constitutes a forumis one of the issues the Court maydecide in this case.Nonpublic forum If the studentactivities fund is a nonpublicforum, again government may dis-criminate on the basis of view-point. Mailboxes are an exampleof one sort of "nonpublic forum"to which access may be cut off invarious circumstances. In PerryEducation Assn. v. Perry LocalEducators' Assn., 460 U.S. 37(1983). for example, a governmentemployera public schooldidnot have to allow public access toits employees' mailboxes. TheCourt held that the school systemhad not converted its internal mailsystem to a public or limited-purpose public forum. Thus. itcould limit acce.ss based on sub-ject matter or viewpoint.Public forum The classic publicforums are streets and parks. Insuch places. government may notdiscriminate against applicants for,say. parade permits. either on thebasis of the viewpoint they wish toget across or on the basis of thesubject they wish to address.Instead, government is limited toestablishing reasonable time.place, and manner restrictions forthe use of these forums and other-wise has to make them availablealmost on a "first come, firstserved" basis.Limited-purpose public forumBecause all the parties agree thatthe University does not have todistribute the student activity fundmoneys to anyone who asks. theprimary dispute in Rosenberger iswhether or not the fund should betreated as a limited-purpose publicforum. In that context. governmentis allowed to confine its limited-purpose public forums to specificsubjects. but it may not discrirni-

nate among different Niewpointson those subjects.

A good example of a limited-purpose public forum is a munici-pal auditorium that governmentmakes available for presentingplays but not political rallies. If apresentation deals with an accept-able subject, the government maynot exclude it on the basis of theviewpoint it offers. That is. themunicipal auditorium may be openfor plays and closed for politicalrallies, but it may not be opened toplays that support the governmentand closed to ones that criticize it.

Defining a limited-purpose pub-lic forum is. however, quite diffi-cult. At the extreme, governmentcan open up a forum to so manydifferent subjects that the forumought to be treated as a true publicforum. Thus, in Lamb's Chapel v.Center Moriches School District,113 S. Ct. 2141 (1993). a schoolboard had made school auditori-ums available in the evening to somany groups that denying accessto a religious group was deemedunconstitutional.

A second difficulty with theCourt's treatment of limited-purpose public forums is in deter-mining whether the restriction inquestion involves a subject or aviewpoint. That is, is the restric-tion in dispute a permissiblesubject-matter restriction, or is itan impermissible viewpointrestriction?

In Rosenberger, the Universityviews culture and religion as beingdifferent subjects. Rosenbergersees them as being two aspects ofthe same subject falling under thesame subject areaand thereforethat. if a Muslim and an "OxfordChristian- publication may he stu-dent funded, so may the Christianpublication Wide Awake.

VOL. 3 NO. 3 UPDATE ON Tilt COURTS 9

by Julius Menacker

The U.S. Appellate Court caseRosenberger v. University ofVirginia is a recent example of thecontrasting and interplaying ten-sions raised by the need to balancefree exercise of religion versus theprohibition against governmentestablishment of religion and theright to free speech versus the lim-its of that right.

OBJECTIVESUnderstand the meaning and

importance of the civil rights con-tained in the First Amendment

Appreciate the unique attributesof both First Amendment freedomof religion and First Amendmentfree expression rights

Understand that various civilrights may collide or have varyingapplications in different contexts

Appreciate that public institu-tions, such as public schools orstate universities, are agencies ofgovernment, and so are required toallow free exercise of religion andfree expression, while also enforc-ing the constitutional constraintson keeping public institutions neu-tral regarding religion

Analyze the relative importanceand complexity of applying thefree ,.!xercise and establishmentcliuses, along with free expres-sion. to the issues in Rosenberger

Target Group: Grades 11-12Time Needed: Tv, o weeksNIaterials Needed: For each stu-dent, pages 6-9. 11-14 of thisbooklet

10 UPDATE ON THE COURTS

1 I 1 I

Update on the Courts 3.3. 1995. pp. 10-14. 0 American Bar Association.

PROCEDURES1. Have students read and discuss"Prayer Pendulum" on pages 1-4of this booklet before using thisstrategy. If desirable, assign one ormore of the activities on page 5.2. Assign Student Handout #1 forthe class to read (if not alreadyassigned in connection with theactivities on page 5). Lead theclass through an explanation ofthe elements and applications ofthe First Amendment. Then con-duct a discussion of the varioussituations in which the establish-ment clause has benefitedAmerican society (e.g.. people ofdifferent religions do not have topay taxes to support one "official"religion, and they are not requiredby law to attend religious servicesat one "official" church).

Repeat for the free exerciseclause (e.g.. students do not haveto participate in required activitiesthat violate their religious beliefs)and the free expression clause(e.g.. people may speak theirminds about societal issues thatconcern them, even if their viewsare not currently popular, providedtheir speech does not result inserious disruption or harm toothers).3. Distribute Student Handout #2and discuss Section A with theclass. Advise students to use thishandout for reference while read-ing the case analysis found onpages 6-9.4. Assign the case analysis onpages 6-9, "Rosenberger v.University of Virginia."

ii

5. Allow students to volunteer forthe following moot court roles, inwhich an appeal to theRosenberger decision is taken tothe U.S. Supreme Court. Ninemembers will assume the roles ofthe Supreme Court justices. Theremaining students should beequally divided into two legalteams, one making the appeal, andthe other defending against it.6. Have students read Section B asan aid for preparing their argu-ments. This can be a homeworkassignment in which team mem-bers write their various views foruse in later classroom team meet-ings to prepare written and oralarguments. The "justices" willhave the handout for referencepurposes during oral argument.7. Have each team submit a writ-ten brief to the Court and select amember to present the oral argu-ment. Give each side one classperiod to present its argument,with the justices free to raise ques-tions to the presenter. Justicesshould also take notes during thepresentations.8. After oral arguments are con-cluded. have the justices meettogether outside class to preparetheir written decision as a home-work assignment. For this activity.they should use their presentationnotes as well as Handouts 1 and 2.The decision should be deliveredto both sides, along with an oralpresentation summarizing thedecision, delivered by a studentelected by his/her peers as chiefjustice.

VOL. 3 NO. 3

STUDENT IIIINDOUT#1

Religious Freedom and Free Expression Ri ts

The first ten amendments to the U.S.Constitution, known as the Bill of Rights. con-tain the fundamental guarantees safeguardingpeople living in the United States from abusesby government officials. Many of thefounders. concerned that a strong governmentmight someday decide to oppress the people.approved the Constitution only when it wasagreed that this Bill :if Rights would soon beadded to it.

Once the Bill of Rights became part of theConstitution. the remaining problem was todetermine exactly what each right guaranteedto the people was. The founders did not pro-vide elaborate detail about these rights. Forexample. the First Amendment states that"Congress shall make no law respecting anestablishment of religion, or prohibiting thefree exercise thereof: or abridging the freedomof speech. or of the press. . . .** That is all weare told about individual protections of reli-gious freedom and free expression. Therefore.it has been left to the courts. particularly theU.S. Supreme Court, to define the meaningsbehind the religion and free expression guar-antees. This process continues to the presentday.

In defining religious freedom and freeexpression rights, the courts have determinedthat not only Con-ress, but all elements of thenational, state. ana local governments (includ-ing public schools and colleges) may neitherviolate religious freedom nor violate freeexpression, nor support any or all religions.The courts have also made clear that no civilliberties are unlimited. The exercise of person-al freedom must be balanced by concern forthe public welfare. For example. Justice OliverW. Holmes. Jr.. gave the example that "freespeech would not protect a man in falselyshouting fire in a theater and causing a panic-

(Schenck v. United StateA, 249 U.S. 471I9I91). Nine years later. Justice Brandeiselaborated on this by explaining that "fear ofserious injury cannot alone justif suppressionof free speech Men feared witches andburned women. It is the function of Teech tofree men from the bondage of irrational fears-(Whitney v. California. 274 U.S. 3571192711.

The same concerns for balancing indi\idualfreedom with public welfare have attended thedevelopment of constitutional law related tothe two religion clauses. For example. theSupreme Court has accepted Thoma-Jefferson's view that there should he "a V al Iof separation between church and state- (seepage 14 for source of quotation). In support ot

this concept. one Supreme Court decision stat-ed that "a union of government and religiontends to destroy government and to degradereligion- (Engle v. Vitale, 37(3 U.S. 42111962]). Yet. other Supreme Court decision,.have held that "we are a religious peoplewhose institutions presuppose a SupremeBeing- (Zorach v. Clau.son. 343 U.S. 3t)()119521) and that "the First Amendmentdoes not require the state to he [religion's)adversary- (Everson v. Board of Educatwn.330 U.S. 1 [1947)).

Public schools and colleges have frequentlbeen the battlefields for sorting out the mean-ing of both religious and free expressionrights. In the process. it became clear thatthese rights could collide. as when concernabout not "establishing- religion encroachesupon the free exercise of religion or freeexpression. This has been a health tension inAmerican jurisprudence. a it keeps citi/ensaware of the continuing need for keeping aproper balance between individual rights andthe general welfare as conditions of lite andinterests of people change in our nation.

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BEST COPY AVAILABLE

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$711DENT HANDOUT #2

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SECTION A

GENERAL PRINCIPLESGovernment, including public universities.may not support religious activities. However,it may support programs with a wide scopethat includes some religious matter.

2. Government, including public universities.may not engage in content (subject matter) orviewpoint discrimination when a public forumhas been created: that is, a forum open toexpression of all viewpoints. However, if alimited-purpose public forum is establishedthat is, one established for a specific, identi-fied purpose, such as discussion of and/or pre-sentations of performing arts like music anddanceviewpoint discrimination is allowed.

Government agencies may not discriminatewith respect to giving students access to itsfacilities in the absence of a compelling inter-

est. For example. in Widmar v. Vincent. 454U.S. 263 (1981), the Supreme Court rejectedthe argument that adhering to the establish-ment clause was a compelling interest becauseallowing access in that case did not advancereligion (see Lemon test, below). Compellinginterest may exist under certain circum-stances, however: the Court is deciding

hether a compelling reason exists inRovenbetger

4. In Rosenberger the Court will also decidehether universities may distinguish among

various types of organizations in decisions toprovide financial support: for example,between cultural and religious organizations.Any such distinctions would have to be rea-sonable. One example of a reasonable distinc-

tion is supporting only organizations that con-

tribute to the mission and objectives of theUniversity. The analysis then would fo,usupon whether University policy appears to dothat in a logical, consistent way.

5. The U.S. Supreme Court established a three-part (Lemon) test in Lemon v. Kurtzman, 403U.S. 602, 612 (1971), for determining whether

or not the establishment clause has been vio-lated. In order to not violate the establishmentclause, the action musta. Have a primary purpose that is secular (non-

religious)b. Be neutral toward religion, neither advanc-

ing nor inhibiting itc. Avoid excessive church-state entanglement

SECTION B-

CASE ABSTRACTS

Free ExpressionSweezy v. New Hampshire, 354 U.S. 234 (1957)

In this case, the Supreme Court held that therefusal of a professor to reveal the contents of his

lecture and his knowledge of a particular political

party (the Communist party) and its adherents,which resulted in the professor's contempt con-viction, was an invasion of the professor's freeexpression liberties (academic freedom and polit-

ical expression). However, in so holding, theCourt also said: "A university legitimately mayregard some subjects as more relevant to its aca-demic mission than others. . . . A university has

four essential freedoms consisting of the right todetermine for itself on academic grounds who

may teach, what may be taught, how it shall betaught, and who may be admitted to study:'

Healy v. James, 408 U.S. 169 (1972) The Courtupheld the right of a public university to deny a

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VOL. 3 NO, I

student activity charter based on the group's asso-ciation with Students for a Democratic Society.which was considered to be dangerous and dis-ruptive by the university. In doing so. the Courtrecognized a "university's right to exclude evenFirst Amendment activities that violate reason-able campus rules or substantially interfere withthe opportunity of other students to obtain aneducation." The decision also noted that "everyuniversity must make academic judgments ashow to best allocate scarce resources."

Perry Education Assn. v. Perry LocalEducators' Assn., 460 U.S. 37 (1983) In thiscase, the Court had to decide if a school had cre-ated an open or limited-purpose public forum byallowing certain groups to use its teacher mail-boxes. thereby requiring it to allow a losingteachers' union to put materials into the mail-boxes on the same basis as the winning union.The Court decided that the mail system was anonpublic forum and both subject matter andviewpoint distinctions could be made. If a publicinstitution, as a school or university, has estab-lished a limited-purpose public forum or a non-public forum. it may discriminate with regard toviewpoint.

Rust v. Sullivan, 500 U.S. 173 (1991) The Courtheld that government, within broad limits. maychoose the message it wishes to convey (e.g.,"Say No to Drugs") or support organizations witha particular controversial viewpoint (e.g., pro-abortion or anti-abortion) without allowing forcompeting or alternative messages.

Religious FreedomBowen v. Kendrick, 487 U.S. 589 (1988) TheCourt upheld the constitutionality of public grantsof money to support the work of religious organi-zations that support programs combating teenagepregnancy. even though the programs containedreligious content.

Zobrest v. Catalina Foothills School District,113 S. Ct. 2462 (1993) In this case. the Courtconsidered whether special education services.

required under the federal Individuals withDisabilities Education Act. could be provided in areligious school. The Court held that the estab-lishment clause was not violated when the stateprovided a sign-language translator for a deaf stu-dent attending a religious school, even though thestate-paid translator would make religious state-ments in some translations.

Religious Freedom and Free ExpressionWidmar v. Vincent, 454 U.S. 263 (1981) TheUniversity of Missouri denied campus recogni-tion to a student religious organization, based onits view that doing so would violate the establish-ment clause. The Court held that a public univer-sity could not exclude a student religious organi-zation from the rights and benefits of being a rec-ognized student organization when a publicforum for student organizations had been created.The Court held that the establishment clause didnot bar religious interests within a policy of equalaccess when facilities are open to groups andspeakers of all kinds. This was especially applica-ble to a university since university students "areable to appreciate that the University's policy isone of neutrality toward religion:' The Court didnote that its ruling applied to student-initiatedinterest groups that were not sponsored by a pub-lic university, and that "our holding in this case inno way undermines the capacity of the Universityto establish reasonable time, place, and mannerregulations.-

Lamb's Chapel v. Center Moriches SchoolDistrict, 113 S. Ct. 2141 (1993) A public schoolboard had a policy allowing community organiza-tions to use school auditoriums for evening publicmeetings. When a religious group applied for per-mission. the board denied its use of an auditori-um. The Court held that board policy had createda public forum. Therefore, it could not denyaccess to a group on the basis of subject-matter(including religion) or viewpoint.

Julius Menacker is a professor and chair of thePolicy Studies Area in the College of Education atthe University 011linois at Chicago.

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