Nat Hentoff came out with an interesting column today. In it, he describes two cases, with two different chapters of the ACLU taking opposite sides of what appears to be the same basic question: Whether a student's freedom of speech outweighs alleged violations of the First Amendment's Establishment Clause.

In a case out of New Jersey, a second-grader at a school-sponsored talent show was prevented by school officials from singing a religious tune. The ACLU took the side of the child. But in a case out of Nevada, a school valedictorian had her microphone shut off by school officials out of "concern" that she was going to utter the G-word. The ACLU took the side of the school.

1. Why the apparent discrepancy between the ACLU's approaches in these cases?

2. Which side in each case do you think is favored by the First Amendment?

3. If someone has an interpretation of the Establishment Clause that brings it up against the Free Exercise Clause, is that a sign that his interpretation has gone too far?

1. Why the apparent discrepancy between the ACLU's approaches in these cases?

It seems to me that the local ACLU saw the first as a censorship of a student's choice of material in a talent contest as not being a performance that can be seen as representing the school. It was an individual choice in a student contest.

In Nevada, the valedictory address is something that can be interpreted as a speech made on behalf of the institution. It is indeed sad that this had to get resolved in court rather than in a meeting of the minds conversation. So many more options seem to have been available to the administration other than turning off the microphone. The student, too, didn't have the right to disrupt her entire class's graduation by breaking administration policy. These incidents sadden me. A reference to a personal thanking of one's higher power must be able to be explained away by someone that it is a personal heartfelt message and not an attempt to use a school ceremony to proselytize. Of course, I wasn't ion on the conversations and I do not have a draft of the proposed speech. So I don't know if one side or the other turned this into the proverbial federal case.

2. Which side in each case do you think is favored by the First Amendment?

I think the New Jersey case is a good example of a school going to far in trying to remove religion from sight completely to abide by the establishment clause. And is even more fuel for those devoutly religious who feel their children's moral upbringing is hindered by a public school education.

Since graduation is more of a ceremony that represents a school to the general public, the much more difficult to determine incident is the Nevada one. But I grudgingly think that the school is held responsible for the content of the graduation speech and therefore has the first amendment on its side as it must work to not try to establish religion with its actions. A strict interpretation of the amendment that does not take in account precedent could be used to argue that Congress clearly is not trying to make a law establishing religion in this case, and that the school is definitely inhibiting the free expression if not the practice of religion by turning off the microphone.

3. If someone has an interpretation of the Establishment Clause that brings it up against the Free Exercise Clause, is that a sign that his interpretation has gone too far?

I don't think this is true. Because for some making a fundamental christian church the official and mandatory institution ( a la the Puritans) is their idea of a free expression of religion. Therefore, these are contradictory elements of this part of the first amendment and we need judicial interpretation to set the balance in the gray areas.

Edited to add a link http://www.law.umkc.edu/faculty/projects/f...w/estabinto.htm

How can that possibly be? Is the student an employee of the institution? Would she even come across as one? Is there any other context besides religion where the views expressed in a valedictory address are understood to be the views of the school? It's obvious to everyone involved that the valedictorian is speaking on her own behalf. If she can thank her parents (obviously a personal statement, not an "official" one), why can't she thank the God she believes in?


Only by twisting the meaning of words to the breaking point can a "mandatory" institution be considered an act of "free expression". I think we all know what free expression means. It doesn't mean forcing anybody to do anything. It means expressing your own views as a free person.

On point one. how can it possibly be?? The graduation ceremony is an official school function. And like has been ruled in regards to some school newspapers, the school has some rights in controlling information that is assumed to be a message from the school. Some people see valedictory addresses to be expressions made on behalf of a graduating class. So I think it falls well into the realm of logical possibility. One doesn't have to agree with it, but to think that it is outside the realm of possibility kind of takes this outside the realm of a discussion.
Hazelwood School District v. Kuhlmeier

And I am not saying that based on what information is presented here that I think the school reacted properly, but is it not clear to you that controversial statements made on the podium during graduation will have the complaints generally directed at the principal. (Here imagine a valedictory speech that rails against the war in Iraq and argues that all soldiers who participate in the war are by connection evil-doers.) I don't believe valedictory speeches are complete zones of free speech because it is part of a group's public ceremony and it is a school function. And yes, to reiterate, I believe that it definitely is possible that the audience would expect that the speaker's speech has been vetted by the administration.

Thanking her parents and the parents of her fellow graduates is one thing, thanking God in a certain denominational way is another. I wouldn't challenge it as a principal, but I would make sure it was known why religious language was deemed acceptable as a reflection of the personal beliefs of the speaker.

On point two as to you dismissal of my point about free religion. My point is that there is a place where one person's free expression of religion becomes crosses the line into another person's freedom of expression of religion. For some fundamentalists their vision of society is one in which the state should compel activity in their religion. Short of the religious fundamental state that person will feel that they are not able to have their religious views fully expressed. I was just taking your statement to the extreme and seeing if it applied in all situations. And I felt that making federal laws could be seen by some as part of the free exercise of religion. So I stopped at the extreme end and decided that the premise that anytime the establishment clause went against the free exercise clause that the free exercise clause should win. But now my use of the word mandatory is the problem instead of the premise. I disagree that free exercise should always trump the establishment clause.

1. Why the apparent discrepancy between the ACLU's approaches in these cases?

Because the ACLU isn't a monolithic entity. It's made up of many individuals, and the thinking will be diverse as a result.

2. Which side in each case do you think is favored by the First Amendment?

We come back to who's footing the bill. If taxpayers, hands off. So, when using a publicly funded forum, leave the theology at home. Wish politicians would follow this simple principle.

The only exception to this reasonable take on the situation is for philosophy debates. Public schools and other publicly funded forums could, and actually should, promote many different takes on the nature of God and spirituality, or the lack thereof. That's an important part of education.

It's a subject more appropriate to college though. Younger minds need stability. We really don't want to confuse world views with something like string theory or the ideas of multiple universes, multiple big bangs and multiple dimensions. Infinity is tough enough.

3. If someone has an interpretation of the Establishment Clause that brings it up against the Free Exercise Clause, is that a sign that his interpretation has gone too far?

No, and I don't see the logic in this question. Establishment and exercise are in opposition to one another in many cases. Not all, mind you.

For example, church tax exemption can be seen as establishing, but because all churches get the same exemption, free exercise is preserved. Additionally, should a nonprofit group of freethinkers form, the group gets tax exemption too.

Now, if a person wants to praise whatever deity in all facets of life, then I'm afraid the United States of America is probably the wrong place to be. Alternatively, and I do think this is wise spiritual advice, do the praising with the heart, not the flapping pie hole.

The tactic does not garner any attention though, which I do believe is central to both cases. As is far too often the case, spirituality has nothing to do with it. Ego does. For the child, the ego isn't far developed, so it has to be the parents. For the future journalism college student, there's plenty at the source.

Judge Hugo Black explained the Establishment Clause in these words:


"No person may be punished for entertaining or professing religious beliefs".

One important test is to determine if the government is adding "excessive entanglements" by allowing (or disallowing) a behavior.

When it comes to the Free Exercise Clause, the governing principle is compelling interest. What is the compelling interest in restricting a person's religious activities. For example, the Court has ruled that the use of peyote in religious rites may be restricted on a public health basis-a compelling state interest. Since 1990, the Court has relaxed its guidelines somewhat, allowing laws as long as they do not target a specific religious practice.

It is a strange twist on the 14th Amendment's incorporation doctrine, the Court has ruled that state and local government can restrict practices more narrowly than the federal government is allowed to. They still must demonstrate a state interest, but the burden is lower.

1. Why the apparent discrepancy between the ACLU's approaches in these cases?

The cases were brought by different ACLU chapters. Both cases have 1st amendment issues and the ACLU seems to have at least one of them right.

2. Which side in each case do you think is favored by the First Amendment?

I think it is clear that the second grader is not using governmental power to preach to the audience. The establishment clause forbids the government from punishing a person based on their religious views and hence the valedictorian has every right to mention God. The commencement ceremony is not an endorsement of the valedictorian's views and censoring those views should not be done lightly.

3. If someone has an interpretation of the Establishment Clause that brings it up against the Free Exercise Clause, is that a sign that his interpretation has gone too far?

I don't think so. The government's activities are restricted by each of these clauses. The entire 1st amendment is designed to restrict the power of the government and not expand it. It must be read in this light.

So in the second grader case, is it the government that is choosing the material or is the government restricting the citizen's choice? Which decision limits the involvement and the power of the government over the citizen?

In the case of the valedictorian's speech, is it the government espousing the view or the individual? It is counter logical to say that the government is furthering a compelling state interest by restricting the individual's free speech rights. What interest is the government furthering? There is no state interest in excluding religion if an individual chooses to bring it. There is a prohibition in the encouragement of a particular religion (over other religions or non-religions).

In both of these cases, the government's actions are harmful to the free exercise of the individual's rights and do not further a state interest.



Are you saying that freedom of religion is not respected in the United States??

But that wasn't what I was questioning. Being vetted by the administration is not the same as actually speaking for the administration. I can't imagine anyone attending a valedictory speech and thinking that. Everyone knows that she's speaking for herself, not for anyone else.


Who would realistically argue this? Does anyone you know of interpret freedom of political speech to involve the power of the state to forcibly impose a political opinion on society? Does the lack of an "establishment" clause in that area imply that the state has the power to do so?



That's of course neither here nor there. The "flapping pie hole" is what free exercise is all about, your opinions of it notwithstanding.



I think you're beginning to make my point. "Compelling interest" is a term restricting the exercise of the legislature. But when it comes to the Establishment Clause, it's the courts who are acting in place of the legislature. And if a court is taking an action which, if taken by the legislature, would plausibly trigger a Free Exercise case, then I can only think that the court's interpretation of the Establishment Clause is going too far. I simply can't believe that the authors of the First Amendment intended for the two clauses to come so close to conflicting with each other. If they did, you'd think they would have provided some semblance of guidance as to how to resolve the conflict.

1. Why the apparent discrepancy between the ACLU's approaches in these cases?

I think that there is some concern over the nature of McComb's speech. Her speech, in my opinion, is very clearly prostletyzing.

Here is McComb's speech:

Brittany McComb's Valedictorian Speech

When she starts saying things like, "His love is 'that something more' we all desire," and "He died so we..." and "And God's plan for each of our lives may not leave us with an impressive and extensive resume, but if we pursue His plan..."

This goes well beyond expressing a personal experience of religion... well beyond simply thanking the Lord. It is not "His love is that 'something more' that I desire." or "God's plan for my life may not leave me with an extensive resume, but if I pursue His plan." These might be considered statements of personal belief regarding her experience of religion. But this is not what she wrote... it was not the speech she wanted to deliver.

The question in that case is whether the school retains primary control over the content of the speech. The ACLU argument is that, because the school reviews the speeches before allowing them to be presented, they retain primary control over the content.

The school could, however, have issued a disclaimer to disassociate itself from the speech, thereby maintaining the separation.

Personally, I think it should've been handled differently. There was a way, as I've illustrated, to make the full speech less of a sermon while retaining the spirit of McComb's personal beliefs. She should've been guided that way by the school and the school could then have offered a disclaimer.

2. Which side in each case do you think is favored by the First Amendment?

I think the case involving the Second Grader is clearly favored by the First Amendment. I believe McComb's case is questionable.

3. If someone has an interpretation of the Establishment Clause that brings it up against the Free Exercise Clause, is that a sign that his interpretation has gone too far?

No.

By necessity and in particular instances, yes. Think I was pretty clear on this in my first post on the issue.

I can think of a couple more platitudes: If your mouth is flapping, you aren't learning anything. Don't believe anything you hear and only half of what you read.

The problems we have with religious arrogance in this country must be controlled, otherwise nobody has freedom of religion. I see the taxpayer touchstone as being the reasonable way to avoid religious tyranny.

Once again, if taxpayers fund the forum, leave theology at home.

We have other restrictions too. Just caught a news report on polygamy. So sure, if one want to praise whatever deity in this way, the United States of America is probably the wrong place to be. We can, and do, add publicly funded forums as well.

Edit addition:



Blackstone, no, free exercise is not all about flapping pie holes on publicly funded property. Cities and towns have street preacher restrictions, under the idea of being a public nuisance or words to that effect. What I don't understand is why you don't think that courts ought to support such legislation. As far as guidelines from the FFs, take a look. They're out there. Try starting with Jefferson. But then, the FFs were a diverse bunch of folks, weren't they.


Edit addition: Ha! Read the speech that entspeak linked. I rest my case.

What problems, exactly, are you talking about?



The content of the speech is irrelevant. I read that speech aloud and it took me about 3 minutes. 3 minutes of "prosetilyzing".

I note with interest that just before they pulled the plug, there was "audience cheering and applause". Probably irrelevant...

As I read this thread, I remember my own graduation ceremony where the top two students gave speeches. The valedictorian gave the standard canned speech of which I cannot remember one word and the salutatorian gave a speech I still remember. I attended a Catholic high school and his speech talked about the "Padua screw". How it pushed kids forward towards success, how it could be driven by a tool (the administration) and in turn drive others. While praising the school for making him the student he was, he was back-handing the school by referring to how students get screwed by the school. He ended his speech by thanking the school for giving him the "Padua screw". I'm sure the school did not approve his speech beforehand (let alone afterwards) and nobody assumed that the speech he gave represented the views of the school.

Back to the case at hand:

The McComb complaint is here.

In it, the plaintiffs quote the federal guidelines on this issue as stated in the Elementary and Secondary Education Act and amended by the No Child Left Behind Act:


The burden is on the school to make disclaimers of neutrality. "School official may make appropriate, neutral disclaimers..."

The school district's own policy says:


What the school did here not only violated the 1st amendment, it violated federal law and the district's policy. If that doesn't make this case cut and dry, I don't know what possibly could.

Some will no doubt point to the fact that Miss McComb told school officials she would deliver their censored version of the speech. However, the case hinges on the coercion by the government and not on the speech given or its content.

Amlord,

Oh, the content is very much the point on which this case hinges. The question in the case is whether or not McComb retained primary control over the content or whether the school district did.

Does the district have the final authority to approve a valedictorian's speech? I believe it does. There is nothing in the federal law or the district policy that indicates otherwise.

In such a case, as expressed in Lassonde v. Pleasanton USD:



...it is necessary for the district to censor the speech in order to comply with the Establishment Clause of the US Constitution.

In Lassonde, the plaintiff was allowed to make references to God, but was not allowed to prostletyze. The 9th Circuit ruled that – because of the district authorization of the speech, district funding of the event, and the principal's final authority for approval of the speech and its content – the decision on the part of the school district to censor the speech was constitutionally necessary. According to the ACLU, the plaintiffs in that case petitioned the US Supreme Court to have the decision reversed... the request was denied.



Do not confuse may with must. There is no requirement. The school is under no such legal burden.

entspeak,

You have ignored the federal law here and the school district's policy: "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."

The question become if (and subsequently why) the district took over primary control on the content.

From Lassonde:


OK, so now we come to that crucial point: how do we discern between simple references to God and proselytizing references to God. How can the school make these determinations?

In the Lassonde case, we can see the direct proselytizing involved:


Nowhere in McComb's speech does it implore the audience to join her in her religious beliefs.

pros·e·ly·tize n. 1 : to induce someone to convert to one's faith
2 : to recruit someone to join one's party, institution, or cause
transitive verb : to recruit or convert especially to a new faith, institution, or cause

From m-w.com.

Show me where McComb's speech induced anyone to convert to Christianity. It was not proselytizing, it was sectarian.

I agree with the Court's ruling that students should not be subject to speech imploring them to convert their religion at a graduation ceremony. This speech, however, does not rise to that level.

Again, Amlord, I have not ignored federal law or the district's policy. Where is the regulation stating that the school district does not retain primary control of the content of valedictorian speeches? Where? The school district did not suddenly exert control over the content McComb's speech. They always had control over the content of valedictorian speeches. They have and have always had final approval.



Nowhere in the Lassonde case is the word implore used. Nowhere in the definition of proselytize is the word implore used. Don't attempt to manipulate the meaning of the word proselytize.

Does McComb's speech make an attempt to induce someone to convert? Could it reasonably be taken as such?



This couldn't be reasonable taken as inducement? If we pursue His plan, she said. Was she using the royal we? Trust me, this block fits, she said. Not an inducement?

If the school administration is offended by the speech content, then maybe it is they that need to review the Constitution, instead of blaming the speech. There concern should be demonstrated, as suggested, with a disclaimer. This is quite acceptable. Now, that doesn't not mean that I support speaking indecencies, insults and other things commonly held as profane. When the school acts to quiet a speech such as the one here, then in effect it is acting as Congress passing a law respecting religion, thus violating the 1st Amendment. The Constitution can be a double-edged sword that cuts both ways.

Not the same thing at all. Those laws are designed to maintain public order so that people can use the streets for their intended purpose: going about their business. Obviously not applicable to a valedictory address.


Well, why not post a quote or two from them that you think would support you in this?



Ah, the 9th Circuit Court of Appeals, the most overturned circuit court in the country (yes, I know USSC cert was denied in this case, but that means nothing in terms of the merits of the case). As has been explained already on this thread, a speech that is vetted by the school authorities is not necessarily a speech speaking for the school authorities. Nobody in the audience would assume that the valedictorian is speaking for anyone but herself.

Presumably the second graders in the school-sponsored talent show in New Jersey could also have been subject to pre-censorship by school officials. After all, I'm sure they wouldn't have wanted the students putting on acts that were inappropriate for their age. Does that also mean those students were speaking for the school, or for themselves?

Neither does your assertion regarding the court being the most overturned circuit court in the country. .

If you'd like to argue the merits of the case, please do. Merely attacking the credibility of the court means nothing in terms of the merits of the case.



That's quite an assumption. If a student is proselytizing and the school authorized that speech, why wouldn't it be reasonable to expect that there might be someone in the audience who feels they are being forcibly preached to and that the school authorized it. If the school authorized the proselytizing speech, this is a violation of the Establishment Clause.



Yes, and they were. The only requirement known to anybody in that case was that the choice for an act be age appropriate. The difference in this case involves the forum. The attendance for the talent show was purely voluntary. Nobody could claim that they were forced to sit through the song. Also, the choice of act was given entirely to the children with the only restriction being that it be age appropriate. As such, it is very clear that the choice of a religious song was entirely the students. The US Supreme Court has ruled regarding such activity and recognized the difference in the nature of the forum when it comes to a possible violation of the Establishment Clause.

Compare Lee v. Weisman, 1992 to Good News Club v. Milford Central School, 1992. A voluntary after-school talent show is a different forum than a graduation ceremony.

Founder's Intent,



Perhaps you should take another look at the Constitution. Congress is not prohibited from passing a law respecting religion, it is prohibited from passing a law respecting establishment of religion. There is a difference.

Perhaps you should take another look at the Constitution. Congress is not prohibited from passing a law respecting religion, it is prohibited from passing a law respecting establishment of religion. There is a difference.

Quoted from entspeak.

So a law around a religion would not be a law establishing religion? SO if congress makes a law that provides a tax around simply being religious that could pass? What about a law that states no anti religious cartoons in newspapers? Or what about a law putting the word god into a phrase used to praise our nation?

At what point on a federal level does it become a law establishing religion, or is there a difference is the use of the word, or is religion to broad, or not broad enough?

To me any law that pertains to religion would be respecting the establishment of religion, either for or against that religion or religion in general, to have no establishment would simply be to not have it period I would suggest, for otherwise its a law that has to do with religion thus establishing it.

I think its pretty easy to see that the forefathers not going against religion simply felt it was a nice solution to the problem to simply make a wall of separation. It does nothing against religion save making religion a matter that cannot go federal, which as history and of course the modern day can point out is really just a Pandora’s box waiting to be opened. Religion being faith based and purely relative the person holding any particular faith is open to operating from that in a wide array of ways, its not only this but how to you really debate that. People that become charged to save the human race from itself, what do you say to them, more so when they are intoxicated with some fury of religious ideology that puts everything else below such, i think you would find Palestine/Israeli conflict becoming more widespread with different faces and names, also it might be one of the prime reasons the mutually assured destruction that nukes propose would fail in Iran, simply put religion can easily become to focal point of a person or group of peoples lives or life, with no real ability to debate, something akin to the terminator movies series.

Religion and government was to stay separate, as really just to keep people safe and free and cohabitate with the ideas overall of America, such as liberty and the ability to live free, but of course like bleeding heart liberals that want to use the government as a vehicle to push an agenda you can find the same coming from the Christian right, different name but both choose to use the government as a means to control the public at large, and of course more often then not what’s being put forward from these groups deals with nothing one could hardly become fact, more often then not just personal matters of the heart, or simply to me fascism.

So if its a federal body, should it have anything to do with religion in general, I would say no. Simply put if you just allow it, what tolerances should it have, or what is right and wrong when you go there, what limits does it hold, and what then is ok, and then would that decision be right for all Americans.

So give me an example of a law respecting religion that Congress could pass?

Well, certain portions of the No Child Left Behind Act are an example of a law respecting religion. They are not, however, an example of a law respecting the establishment of religion. There are guidelines set down in that law to prevent that violation from occuring – such as the section of NCLB quoted by Amlord.



It should also be noted that the question is not whether the school administration is offended by the speech content. It is whether the school administration violates the Establishment Clause in allowing the speech and whether they are allowed to restrict the student's freedom of religious expression if doing so would violate the Establishment Clause. The Courts have recognized instances where the school administration can't restrict religious expression and instances where it can. It has been recognized both in the law and in Court precedent that this is one instance where it can.

The School Administration has final approval of the valedictorian speeches. According to the law and school policy, the district can in these cases censor a student's speech with regard to religious content.

Personally, I agree that a school district does not have the right to censor a speech simply if a student mentions religion. But in clear cases of proselytizing such as this, I think the school district is bound by the Constitution to censor the speech.

Blackstone, because you brought up the FFs, not me. I rebutted your argument, and that's sufficient.

My take is that if you're using publicly-funded facilities, then don't talk theology. This has nothing to do with the FFs. It has everything to do with religious freedom, and might I add, mutual respect. I'm not the one who needs the FFs to agree with me.

It does please me that you see why street preaching is restricted in this country. Some religious practices are odious, irritating or simply not appropriate to the place. Ergo, we restrict them.

AML, check out this story:

USAF Religious Arrogance

And if you look at this country's history before the Constitution was written, you'll see why there's separation of church and state. We're free to join whatever church we want; we're not forced by law to join any church; and we don't have a government run by any church.

Heh, I like the observation that within three minutes the student managed to slip her theology in there, whatever there is to it. Think it goes like this: Thank God I'm done with high school! Couldn't have done it myself.

Right or wrong theologically speaking, it was a slick move. That's probably what the high schoolers were happy about, as in a little rebellion in the ceremony.

I remember some of my class wearing swimming trunks and suits under the robes and flashing the audience with their young, hard bods headed to Vietnam. As far as meaningful statements go, it's about the same, and of course inappropriate. They were ejected from the ceremony, which is a little more physical than cutting a mic.

So, was that a violation of freedom of speech? There was no specific rule about what you can wear under the robes. But they knew, and we knew, how inappropriate this behavior was. Nevertheless, the other students, including myself, thought it was cool and rebellious, sort of. Well, pathetic is more like it.

Eh, none of that matters, but as far as religious freedom goes, cutting the mic was the right thing to do. At least she wasn't manhandled out of the room.

Nor does merely quoting the opinion of the 9th Circuit Court.


Lee v Weisman is not controlling in this case. There, a rabbi was invited to speak by the school, which would make it more than reasonable for people in the audience to assume that the rabbi was speaking on behalf of the administration. No such assumption can be made in a valedictory speech. Everyone understands the context, particularly the students themselves. The expectation always is that when a valedictorian gets up to speak, it's her own sentiments that are being expressed, and that she has earned the right to speak there. Therefore, she's not acting as a spokesman for anyone.

edited to respond to AM:


And it disappoints me that you're still not able to. It has nothing to do with protecting people from being exposed to unwanted religious messages. We don't have laws, for example, against religious messages on T-shirts in public, or even big religious messages on murals on the sides of buildings or on billboards.

And it disappoints me that you're still not able to. It has nothing to do with protecting people from being exposed to unwanted religious messages. We don't have laws, for example, against religious messages on T-shirts in public, or even big religious messages on murals on the sides of buildings or on billboards.

Quoted from Blackstone.


Because that would be the breech of free exercise. Remember that judge down in the state of Alabama that thought it paramount to emplace the ten commandments at the church I mean courthouse amongst other religious symbolism Now, he could have legally put a statue of Jesus in down at the local mall, a hundred feet tall if he wanted, but when he decided to basically take a federal node hostage onto the local religious customs he crossed that thin line from expression into breeching the wall of separation basically, simply put he made that federal body a house of god. It did not stand but many religious folk got angry, simply because they do not see any harm in there actions.

There is no real restriction on religion in the private sector, simply because that is not what America was designed to be like. I can turn on the t.v and typically my cable provider has three or four Christian based channels, currently asking for money to give to Israel over the whole issue with Hezbollah. There are an equal amount of bars to churches in most cities in America, I think so even in the state of Nevada. There really is no persecution of religion in America, save when religious folks feel persecuted because they cannot use the government as a microphone, or places like public school, so you end up with coup basically, trying to do it anyways. Its a double standard, in that I am sure most parents would not like the whole wide variety of religion coming to be forced down there children’s throats via having to go to school, but if it happens to be a message they agree with then the only harm to not allow such a message in there eyes.

gordo, this example would only be relevant if it were the principal of the school who gave this speech. If it were the principal, I'd be the first to denounce it as violating the establishment clause (or what currently serves as the interpretation of the establishment clause).



Actually, restrictions within the private sector are wholly governed by their acceptance. Why isn't there an Islamic cable channel, while there are several Christian ones? Not enough people would watch.

I might disagree with your statement about there not being religious persecution in this country, but that would be off-topic.

The question here is the balancing between allowing free expression of religion and the government not establishing a religion. You'd think the two issues would have a wide gap.

If a program or speech is initiated by a government official and it promotes one religion at the expense of all others, it violates the Establishment clause (in rough terms). If the action is initiated by an individual and expresses that individual's beliefs, it is protected by the free exercise of religion clause.

Now entspeak has shown us federal court cases which have ruled that graduation ceremonies cannot be used to proselytize to the captive audience. I've noted the distinction here: the speech does not ask for the audience to join Miss McComb in her beliefs. It simply acknowledges what the speaker believes are the causes and motivations behind her success while referencing the fact that she was not academically successful before these motivations came into her life.

The NCLB statute covers this issue directly: if the speaker is chosen based upon neutral criteria (in this case, grade point average) and the content of the speech is the speaker's thoughts and not those of the school (as is the case here--primary control of the content) then it cannot be restricted based upon religious (or non-religious) content. The school district's policy mirrors the statute.

The issue here is primary control of content. In other words: where did it originate. That is obviously the student. The school has secondary control of content--it can choose to exclude certain content (sexually graphic content, perhaps) but I have seen no evidence that the school is the primary source of content. The school, to my knowledge, does not choose the content although it may exclude certain content. It has secondary control.

The last point is that of proselytizing. The speech cannot be used as a vehicle to ask for listeners to convert their religion. I think you would be hard pressed to demonstrate that this speech attempts to do that. Vauge references to "us" or "we" do not meet that burden of proof. And the burden is clearly on the district to show that this speech did indeed attempt to convert the listeners.

So if I gave a speech at graduation at school about how I am glad I do not follow god and that stuff is all just bad it could not be interpreted by the student body or the school itself as having to do with pushing out religious ideology in some fashion. Point being if I was sitting in the audience and this person stood up and gave that sermon I would very much feel that I was hostage to religion being force onto me from participating in that school based social function. So what’s the law around it, does a person have to specifically state that you should follow god or you are wrong, or can you simply talk about god all you want and as long as its not directly telling people to worship god its ok? So if we take that and apply it to sexual harassment would that work?

Again, its a school hosted social function, its not a couple students talking about the bible over lunch break. If a student is required to give a speech for a geography class, should that student be able to stand up in front of the class and say its all wrong, the world only 2000 god years old and you will all burn in hell. Its just a school function and the student in this example would not be telling people they need to join up, just giving off an opinion.

So to take this and make it standard is to say its ok to have any level of religion in public school, just as long as its not directly telling people they need to follow a faith, so with that a religious class would not be against such an example, just as long as the class talked about the bible all day but never said you had to join, or even simply put out a disclaimer that they class is not to be used as a recruitment tool.

You asked me to provide evidence to the challenge your assertion and here you are again, completely ignoring that challenge. Is she using the royal we? What does she mean when she says, "If we follow his plan." And asking us to "Trust [her], this block fits."

First you claim that proselytizing is limited to imploring. Not true. One need not implore to proselytize. She is proselytizing.



Whoa, where does the NCLB define primary control as being the fact that it is the speaker's thoughts? Where does it state that. McComb does not have primary control over the content of her speech if the school can ask her to edit it for content. The school has primary control over the content. Just because the content is primarily hers – in that she came up with it... it is her thoughts – does not mean that she has primary control over it. The school district, in exercising it's right to review valedictorian speeches, exercises primary control over the content.



Primary source is not primary control, Amlord. You are confusing the two concepts.



Wrong. If the school had secondary control, it could only suggest changes and McComb – being that McComb would have primary control – would be able to reject such changes. This is not the case. The school district has final authority regarding the content of a valedictorian speech.



Vague references to "we" and "us"? They seemed to be rather explicit uses of those words. Again, Amlord, she said, "If we follow his plan..." Was she using the royal we? If we follow his plan. If we follow his plan. What we is she referring to? Her audience maybe? Her captive audience? Come now, Amlord. I don't feel particularly hard pressed after that. That was just one sentence among many. Do you want another instance? Here:



So, to which we is she referring to here?

This is verging on a sermon. You can just picture a priest at the altar saying these words. Come on... vague? No.

Here's another:



Which us, Amlord? In a speech to her graduating class, their parents, their friends... which us?

This isn't vague. When you make a speech you address an audience. She was doing that. They are included in the we, they are included in the us. That isn't vague, unclear or ambiguous. It is perfectly clear.



Really? Genius. But it is a precedent in Cole, which is controlling. Lee makes reference to the nature of graduation ceremonies regarding the issue of a voluntary attendance. That is the context.

What if the young lady replaced religion with say science or socialism or existentialism? Or if she replaced Jesus with Ghandi or MLK Jr? Would that make much of a difference? I would say no. She is talking about her own personal beliefs which is protected under free speech. Just because this is at a public ceremony is irrelevant being she does not in any way represent the views of the school or the local government.


Be that as it may, it is still insignificant. Her thoughts are basically a representation of...her thoughts...not of the school. There is no respect to an establishment of religion since it is coming from a private source representing a private source.


Again so what? Is she a priest or one recognized under the Holy Order? No. She is a student delivering a speech not because of her religious beliefs but because of her academic credentials. The question is whether or not the school respects the establishment of religion. The answer is obviously no. They are respecting the students right to respect the establishment of religion.

She goes well beyond talking about her own personal beliefs when she begins to include the audience in them.



This completely misunderstands the obligations of the school district when it comes to complying with the Establishment Clause.



No. Being that the school district has final approval, it can be held responsible for the content of the speech. This is why schools review student speeches in the first place. This is why it is necessary for them to censor it in order to comply with the Establishment Clause.



Respects the establishment of religion? What are you talking about?

Is that not one of the primary purposes of a speech?



The school district did comply. The student did not. The school district is required to comply with the Establishment Clause. The student is not.



And violate the free speech clause? There is no reason to censor it unless you can unequivocally prove that the young lady was in any way perceived to represent the views of the school and not just her own views. That and only that would give your argument any merit.



The school was in no way recognizing the establishment of any religion. They were recognizing the right of the student to exercise her religious or political beliefs. Again, prove that she represented more than just her own personal views or your argument has no bearing.

The school was in no way recognizing the establishment of any religion. They were recognizing the right of the student to exercise her religious or political beliefs. Again, prove that she represented more than just her own personal views or your argument has no bearing.

Quoted from lederuvdapac.


Its a school held social function with a captive audience. Her speech went outside of just being inclusive to self, in that light what would be the difference if a teacher had giving the speech, just because a student is part of the student body and not the faculty does that preclude them from rules a government body like a school must follow. To agree with this is to accept any amount of religious activity in public school coming form a student then, is that what I am to understand?

Certainly. Which is why the school district must be very careful about the content of the speech.



I'll let the US Supreme Court address this:



And, let's not forget, the school had final authority when it came to the content of the speech. Approval of proselytizing speech could reasonably be attributed to the school because of this authority. They would, after all, be reviewing the content and approving of it.

It need only be proven that the school had final authority when it came to the content of the speech and "whether a reasonable dissenter . . . could believe that the group exercise signified her own participation or approval of it." (Lee v. Weisman, USSC – 1992)

It is a given that the school had final authority when it came to the content of valedictorian speeches. Given the content of the speech, could a reasonable dissenter believe that the group exercise signified his or her own participation or approval of it?

Well, you concede that the audience is included in the speech... is that not participation "even in silence" (Cole v. Oroville Union High School District, 9th Cir. – 2000)? Yes it is.

1. Why the apparent discrepancy between the ACLU's approaches in these cases?



To add to what ArthurMusician wrote, the ACLU is organized around many different local chapters.

http://www.aclu.com/

If you follow the link above, you will find a link to local ACLU chapters at the bottom left.

2. Which side in each case do you think is favored by the First Amendment?

I’m going to pass on this question, for now.

3. If someone has an interpretation of the Establishment Clause that brings it up against the Free Exercise Clause, is that a sign that his interpretation has gone too far?

I don’t think so, but there seems to be some yin and yang between the two clauses at times.

In Constitutional Law, 15th edition, 2004 Kathleen M. Sullivan and Gerald Gunther write:



Link to Sullivan’s and Gunther’s case law book.

http://www.amazon.com/Constitutional-Unive...TF8&s=books

Note: Thanks to Wertz for suggesting (in a post some months ago) using links like the one above as documentation for those of us who like to use book sources.

I would feel hostage if I were not allowed to freely leave, but otherwise the words cannot hurt me physically nor do they rob me of Life, Liberty and the Pursuit of Happiness. Most likely you would be booed off stage for the unpopularity of your message or many would stand up and leave.

All it takes is one reasonable person in the crowd to be offended during the graduation ceremony. Why should that individual be required to leave what may be a very important day because the State felt the need to authorize a speaker to proselytize during the ceremony? The choice for them is stay for state-authorized proselytizing or leave the ceremony? No. The school district is compelled by the First Amendment to restrict that speech. And that constitutional requirement outweighs the student's right to freedom of religious expression in that instance.

So, if, for instance, the Valedictorian wanted to thank her lesbian lover and annonce that they were planning on getting married as soon as the state permitted, should that speech be barred as well...as it might offend "one reasonable person" and violate his/her religious beliefs? What speech should be barred in such a case? I submit that by your above criteria almost any speech could fall under that category.

Carol Moseley Braun spoke at my graduation ceremony at the University of Florida. I was submitted to heavy proselytizing for almost an hour and was highly offended. Yet she had her right to speak, and was in fact a paid speaker. I had the right to complain afterwards. I have very little sympathy for the plight of the highschool members sitting through a short Valedictory speech.

Well, Mrs. Pigpen... does thanking one's Lesbian lover and announcing a potential civil marriage fall under the category of religious speech? We are talking about the Establishment Clause in this debate, are we not?

If the Valedictorian said, "God loves lesbians and God wants us to allow lesbians to marry... it is part of his plan for us," then yes... such speech would need to be restricted by the school– that is proselytizing.

So, Mrs. Pigpen, if you take my argument as a whole rather than taking one particular section of it out of context, it becomes apparent that the criteria – which I didn't just make up out of nowhere, but backed up with Federal and US Supreme Court precedent – does not make "almost any speech" fall under that category – only certain forms of religious speech... this is, after all, the Establishment Clause we are talking about.

Do you disagree with the 9th Circuit and the US Supreme Court on this issue?



I have no access to the content of that speech, so I can neither confirm nor deny that she was engaging in religious proselytization beyond your say so. Can you provide the text of the speech?

If a speaker uses the term "we" or "us" then participation of all those present is implied? Actually, you are claiming it is explicit. An indefensible position. "We" does not necessarily mean "you and I" it can also mean "Myself and those like me". We love America. We are from Ohio.

Your claim boils down to asserting that because the school censored her speech, the school must censor her speech. This can be extended to argue that if the editorial control of the speech did not extend to religious content, then the school would be under no Establishment conflicts. This second phrasing is consistent with the NCLB language.

The question here is: which approach is least intrusive? Which allows maximum freedom for the individual while still furthering the State's (in this case, the school's) interest regarding the Establishment clause? Obviously, if the school did not censor the religious content of the speech it would fulfill its Establishment obligations. It could still censor inappropriate content on other grounds, just leave out religion censorship.

The NCLB language permits an avenue which is less restrictive on the individual's speech and avoids "unnecessary entanglements" regarding the Establishment clause. That was the school's policy. Why didn't they follow the policy? Why did they un-necessarily inject themselves into this mess?



A ridiculous standard that could be met in nearly zero percent of cases. I love the bold part. Very ironic.

That constitutional requirement was created by the school's un-necessary editorializing of the content. The school created the problem and then used censorship to fix it.


The NCLB language says that if the student must "retain primary control over the content of their expression". How could that ever apply if the school even reviews it for objectionable language? In what situation could the school review content on any basis and yet the student retains primary control of content? If it cannot be reasonably concluded that the school would not have primary control of content, then why include this language in NCLB at all? So did McComb retain control here or did the school? If the school did, was that the least restrictive path it could have taken?

All of these questions must be asked and answered to arrive at a decision. Oh, and a legal definition of proselityze would be helpful too, since the dictionary definition does not suffice. Does this speech equate to an attempt to persuade someone to Christianity? Maybe if you parse the language enough it does.



No, it doesn't. There is no attempt to persuade someone to convert one's religion simply by espousing personal beliefs.

It is not necessary to rule out all possible interpretations. It is only necessary to determine what a "reasonable dissenter" could perceive.



Really? How does it do that?



Really? And on what grounds have you established that this is the guideline?



What on earth are you talking about? This makes absolutely no sense. I will repeat the quote from the USSC.



Now, complying with the Establishment Clause very specifically involves religious content. How on earth could the school fulfill it's Establishment obligations by not censoring religious content?



There is no obligation to use the less restrictive method. And, according to the 9th Circuit, that method in this case – if you are referring to the disclaimer – would not have been enough to prevent a violation of the Establishment Clause.





Again... what on earth are you talking about?



No, part of the criteria in the NCLB is that the student does retain primary control. In this case she doesn't.