The Games, They are A-Changin'

Abstract

THE SANTA FE school district in southern Texas serves 4,000 students. It has two primary schools, an intermediate school, a junior high school, and a high school. Prior to 1995, per a mandatory district policy, Santa Fe High School who occupied school's elective office of student council chaplain delivered a prayer over public address system before each varsity football game. In April 1995, a Mormon and a Catholic filed, via their parents, a motion in federal court for a temporary restraining order to prevent student-delivered invocations and benedictions at imminent graduation exercises. In their complaint, they alleged related proselytizing activities, including prayers at football games. On 10 May, district court issued an interim order that, among other things, modified district policy to allow only a nonproselytizing, solemnizing, and nondenominational . . . invocation and/or by one or more seniors selected by graduating class. In response, district adopted a series of prayer- related policies. One, immediately adopted in May, provided for a referendum by secret ballot among graduating seniors to choose an invocation and benediction would be part of graduation exercises and, if so, a follow-up election to choose senior(s) to deliver them. Another one of policies, adopted in August, provided for a parallel process among all students with regard to invocations at home football games. Both graduation and football-game policies omitted requirement that invocations and benedictions be nonsectarian and nonproselytizing but included a fallback provision that automatically added this limitation if court ruled that open-ended version was not valid. The district court subsequently entered an injunction against open-ended policy. Both parties appealed. The district contended that enjoined portion was permissible, and plaintiff families countered that both open-ended and fallback versions violated Establishment Clause. On 26 February 1999, Fifth Circuit Court of Appeals held that football-game prayers were unconstitutional, whether . . . selected by vote or spontaneously initiated at these frequently recurring, informal, school-sponsored events, as distinguished from solemn and once-in-a-lifetime graduation ceremony. The school district sought and obtained Supreme Court review. On 19 June 2000, Supreme Court, by a 6-to-3 vote, affirmed lower courts' rulings, specifically concluding that a policy authorizing student-led, student-initiated prayer at football games violates Establishment Clause.1 The majority opinion, authored by Justice John Paul Stevens, followed control-coercion analysis of Lee v. Weisman.2 First, finding that pregame prayer did not meet public forum test of being open to indiscriminate use by body generally, Court concluded that school officials controlled, by policy, process and content of student's message. Reminding rest of us that Bill of Rights is intended to provide fundamental protections for individual, Court pointed out that election process does nothing to protect minority; indeed it likely serves to intensify their offense. The Court observed that the realities of situation plainly reveal that its policy involves both perceived and actual endorsement of religion. These realities, as enumerated by Court, included history, text, and implementation of policy. Lightly evoking nuances of Lemon tripartite test, Court variously characterized policy as having a sham secular purpose, a primary effect of endorsing religion, and an entangling divisiveness along religious lines in a public school setting. Second, Court concluded that, even if coercive pressure for attending a high school home football game is different in degree from that for attending one's graduation, it is same in kind. …