Religious speech in school: religion or speech?

Thou shalt not preach.

My previous post discusses the tension between the Establishment Clause and the Free-Exercise Clause in the First Amendment.  In the school context, much of the tension centers on what public school educators can or cannot do.  But a couple of recent cases involving religious speech demonstrate that the tension exists for students as well.

Unlike with teachers, who are state employees, student religious speech normally does not trigger the Establishment Clause concern that the state is endorsing an official religion.  Nonetheless, in recent years, controversies and lawsuits have sprung up around the country concerning whether schools may prevent students from reciting prayers, singing religious hymns, or offering other expressions of religion at school-sponsored events.  In nearly all of these cases, courts have upheld the powers of the schools to regulate student conduct. 

Some of the cases seem almost comically petty.  A Wisconsin student who planned to sing a hymn at graduation was told, for example, that she would have to use “he,” “him,” or “his,” instead of “God” in the lyrics.  A New Jersey school district banned religious music entirely at the school holiday concert, a decision challenged by parents but upheld by the 3rd circuit.

A pair of cases about graduation speeches have received a lot of media attention, and both were recently denied cert by the Supreme Court.  In McComb v. Crehan, a Las Vegas high school valedictorian sought to use her valedictory speech to discuss how her christian faith helped her to succeed in school.  The school nixed portions of her draft speech as “proselytizing.”  Brittany McComb decided to deliver the speech anyway, and the school turned off her microphone at graduation.  McComb then brought suit against the school district, alleging a violation of her First Amendment rights.

A district court in Nevada denied the school’s motion to dismiss the case based on the pleadings, essentially ruling that McComb could go forward on her suit.  But the 9th Circuit reversed and upheld the school’s actions.

In a similar case, Colorado valedictorian Erica Corder also veered from her prepared text into proselytization of her Christian faith.  She actually succeeded in delivering the entire speech.  But the school principal refused to grant her diploma until she wrote a letter acknowledging that the speech was her personal view.  Corder’s suit against the school district, therefore, dealt not only with unlawfully censored speech but also unlawfully compelled speech.  The suit has been similarly dismissed by the 10th Circuit.

Although the two circuit courts reached the same results, they rested their reasoning on different grounds: one primarily on religion, and the other primarily on speech.  This highlights a problem with student religious speech in school — should it be analyzed under the Establishment Clause rubric, or the Free Speech Clause?

In the 9th Circuit, the issue was analyzed as one of religion, perhaps in part because there is clear caselaw that students have no right to proselytize in a school-sponsored event.  Neither party disputed that the school officials had the power to control and censor student speech in such a setting.  The main issues were factual: whether the student speech was in fact proselytizing and whether the school official retained primary control over the graduation speech.

The 10th Circuit, however, did not have such clear precedents, and instead rested its ruling on an analysis of prior Supreme Court student free-speech cases.  In doing so, the 10th Circuit ruling nearly completely ignores the “religion” aspect of the case and treats the student’s religious speech as any other types of speech.

Although the 10th Circuit arrives at the same conclusion as the 9th Circuit, such an approach has its risks. Student speech cases typically rely on a kind of in loco parentis authority that the school has to regulate behavior of the students in order to satisfy educational and disciplinary goals.  In its opinion, the 10th Circuit strained to explain what type of “educational” goals the school achieved by censoring religious speech.

The fact of the matter is, a school’s decision to censor religious speech is not the same as its decision to censor sexual, or lewd, or incendiary speech.  It should not rest on a discretionary judgment about the consequences of the speech, but should stem from a legitimate concern that such speech may be seen as endorsed by the school in violation of the Establishment Clause.

Thus, prohibiting this type of speech, at least in a school-sponsored event where schools retain primary control of the content, is not optional and a judgment call, it is constitutionally required.  Religious speech in school is not just speech, it is religion.

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