It is well settled that the First Amendment fully protects the free speech rights of students. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969). Moreover, the Supreme Court has emphasized that religious speech is entitled to the same protections as secular speech under the First Amendment.
[P]rivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995). Thus, whether or not a school has opened a forum for speech, it may not censor speech solely on the basis of the speaker’s viewpoint. Perry Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 46 (1983); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). Furthermore, when a school has opened a forum for student speech by its tradition or policy of permitting class valedictorians, salutatorians, or others chosen without regard to their religious beliefs to speak during graduation exercises, any restrictions on the content of the speech must be “narrowly drawn to effectuate a compelling state interest.” Perry, 460 U.S. at 46.
Unfortunately, decisions to censor student expression are often based on the students’ religious viewpoint. In these cases, a valedictorian or salutatorian’s speech deals with otherwise typical and appropriate topics for a graduation speech. For instance, a student may plan to speak to her classmates about how the events in their lives to date have culminated in their graduation from high school—a typical and appropriate topic for a high school valedictory address. However, if she desires to express her religious belief that God has been the hand moving behind the scene in her life, her speech, while appropriate to the topic, may be censored because of its religious nature. Such viewpoint-based censorship of speech is plainly unconstitutional. See Perry, 460 U.S. at 46. See also Good News Club v. Milford Central School, 533 U.S. 98, 113 (2001) (doubting whether the government’s interest in avoiding an Establishment Clause violation could justify viewpoint-based discrimination against religious speech.)
The most common reason given by school officials for censoring religious speech is their desire to avoid violating the Establishment Clause of the First Amendment. However, where student graduation speakers are selected on the basis of neutral, nonreligious criteria such as their academic standing or class officership, officials cannot claim they must censor their student speech in order to avoid the mistaken perception that the school district endorses the students’ religious beliefs. The Supreme Court has explained:
[T]here is a “crucial difference” between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis …. The proposition that schools do not endorse everything they fail to censor is not complicated.
Bd. of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226, 250 (1990). Thus, school districts lack any valid Establishment Clause interest in deterring the mistaken perception that they endorse a student’s religious speech.
It is also important to note that school officials may not censor student religious speech on the ground that it may be offensive to some. While school officials may restrict student speech that “materially and substantially interferes with the requirements of appropriate discipline,” Tinker, 393 U.S. at 513, they may not simply censor speech out of a desire to avoid the displeasure of some. Tinker, 393 U.S. at 509. Furthermore, although school officials may restrict student speech that “invades or collides with the rights of others,” id. at 513, private religious expression at high school graduation exercises does not implicate this concern. As private speakers who do not speak for the school district, student graduation speakers do not violate other students’ so-called freedom from religion. The Establishment Clause prohibits government from ordering prayer at graduation exercises, Lee v. Weisman, 505 U.S. 577 (1992), or in the classroom. Engel v. Vitale, 370 U.S. 421, 425 (1962). However, individuals have no constitutional right not to hear other private individuals publicly discuss their religious beliefs. See Adler v. Duval County, 250 F.3d 1330, 1342 (11th Cir. 2001) (holding that religious speech or prayer at high school graduation exercises by private students did not violate the Establishment Clause.)
Public school authorities may certainly review a proposed student expression for any content that can fairly be said to be subject to correction or censorship for legitimate pedagogical reasons. Spoken words, like written works, may be reviewed for grammar, style, punctuation or the like, if the presentation may be characterized as furthering the schools’ curriculum. Certainly, content that falls outside the scope of the purpose for the presentation may be struck, and the student may be directed to remain on topic. Likewise, speech may be excised of content that is patently offensive, age-inappropriate, or slanderous. Speech that could foreseeably incite disruption or create an impediment to the learning process may also be proscribed. These strictures ought to offer administrators more than sufficient authority for reviewing and tailoring student presentations in ways that avoid material disruption or gross offense. Where, however, public school officials determine to monitor and control religious references in a student presentation, whether out of Establishment Clause concerns or out of fear of permitting offense, they cross a line forbidden by the First Amendment. As the Supreme Court has made clear, for the devout individual, religion is not a discrete category or a form of “content;” it is a viewpoint, which pervades that person’s outlook and informs virtually every aspect of his or her being. Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819 (1995). Any restriction on religious viewpoint must accordingly be justified by a showing that a compelling state interest is at stake, and the means chosen by the school are the least restrictive of speech. Id.
School administrators who monitor and censor student speeches for improper “religious” content, requiring speech to be “nonsectarian” or “non-proselytizing” to avoid causing offense, are choosing the most constitutionally offensive course of action. This determination requires government actors to enter the constitutionally prohibited realm of delineating the degree of religious content that will be deemed acceptable and inoffensive to the audience. The term “nonsectarian,” in a less pluralistic age, once referred to generic Christian doctrine, as opposed to doctrinal distinctions between Roman Catholicism and Protestant sects. Today, in a society in which urban public schools may include large numbers of Buddhist, Hindu, Muslim, Jewish and Sikh students, as well as practitioners of fetishistic and animistic religions, atheists and agnostics, the term “nonsectarian” has become meaningless. Because of this rich diversity, virtually any expression of sincere religious devotion in the public sphere is likely to cause offense to some. On the other hand, this diversity also militates against the likelihood that a particular student’s permitted expression might be taken as a state endorsement of his or her faith. “Proselytizing” is also a red herring; evangelism of a religious message is protected core First Amendment speech. See Good News Club, 533 U.S. at 125-26; Rosenberger, 515 U.S. at 844 (referring approvingly to the dissent’s description of the paper as a “work characterized by… evangelism,” but noting it protected nonetheless); Cantwell v. Connecticut, 310 U.S. 296 (1940). “Proselytizing” is only another word for “private speech endorsing religion,” which the First Amendment clearly protects. Mergens, 496 U.S. at 250.
By censoring student religious speech at graduation exercises, school districts also jeopardize their federal education funding under the Elementary and Secondary Education Act of 1965. 20 U.S.C.S. § 7904(b). As a condition of receiving funds under this Act, local education agencies are required to certify in writing to their state educational agency that they have no policies that prevent or deny participation in constitutionally protected prayer as detailed in the guidance issued by the Department of Education. 20 U.S.C.S. § 7904(b). The Secretary of the Department of Education is authorized to provide guidance on constitutionally protected prayer and to withhold funds from recipients that are not in compliance with that guidance. 20 U.S.C.S. § 7904(a-b). On February 7, 2003, the Department of Education issued its Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools pursuant to this statute. This guidance states, in pertinent part:
Prayer at Graduation
School officials may not mandate or organize prayer at graduation or select speakers for such events in a manner that favors religious speech such as prayer. Where students or other private graduation speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, however, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. To avoid any mistaken perception that a school endorses student or other private speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker’s and not the school’s.
See Doe v. School District of the City of Norfolk, 340 F.3d 605 (8th Cir. 2003) (The Establishment Clause was not violated when a school board member offered a prayer during graduation; the board member was chosen to speak because his child was a member of the graduating class and the decision to offer the prayer was his personal decision.)
Every local school district in the nation is required to certify to its state department of education that it is in compliance with these guidelines. Virtually every school district in the country complied with this requirement prior to the April 15 deadline set by the U.S. Department of Education. Thus, school districts that continue to prohibit student religious speech at graduation exercises violate the very guidelines with which they have confirmed their compliance. By violating students’ rights in this manner, they jeopardize their own federal funding.
John Whitehead is president of the The Rutherford Institute.
