Santa Fe Independent School District v. Doe: mapping the future of student-led, student-initiated prayer in public schools.

Author:Speich, Jeremy

    This note will discuss how, in Santa Fe Independent School District v. Doe, (1) the Supreme Court, in deciding that a school district's policy of permitting state-endorsed student prayer violated the Establishment Clause of the First Amendment, established a map by which student-led, student-initiated prayer may be allowed in public schools. Part II outlines the facts of the case, the particulars of the school district's policy, and the procedural history of the case in federal court. (2) Part III discusses the evolution of Establishment Clause jurisprudence and its relationship to the three tests used to determine whether a constitutional violation has occurred. (3) Part IV explores the distinction between prayer as private speech and prayer as government speech, and analyzes the application of the three tests to the school district's policy. (4) Part V notes criticisms of Santa Fe and argues that the Supreme Court's decision does not inhibit school prayer, but actually creates a roadmap for students and school districts to appropriately accommodate religious beliefs and facilitate religious activities. (5) Part VI analyzes decisions construing Santa Fe and demonstrates how its holding has not been used as a vehicle to eliminate religious beliefs and activities from the public schools. (6) Part VII concludes that the Santa Fe decision will not be used to eliminate prayer from public schools, but, instead, has reaffirmed the Court's support for constitutionally permissible, student-led student-initiated prayer in public schools. (7) Finally, Appendix B presents a case study implementing the Santa Fe Independent School District's policy in five hypothetical school districts, determining the policy's constitutionality in each district, and comparing each outcome with the decision in Santa Fe. (8)


    The Supreme Court's decision in Santa Fe came about following a series of policies regarding student prayer at graduation ceremonies and sporting events, implemented by the Santa Fe Independent School District (SFISD). Prior to the events that gave rise to the litigation, (9) no written school policy addressed prayers at graduation ceremonies or football games. (10) Nonetheless, SFISD permitted student council officers to maintain an elective office of "student council `chaplain,'" and allowed students to deliver prayers at home football games, graduation ceremonies, and other school events. (11)

    In June 1993, SFISD drafted--for the first time--a written policy prohibiting school officials from "direct[ing] the performance of a formal religious exercise at [graduation] ceremonies." (12) After, and in response to, the June 1994 graduation ceremony--which included an overtly Christian invocation, benediction, and salutatory address (13)--SFISD amended its policy to permit the election of students "to deliver nonsectarian, nonproselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies." (14)

    In April 1995, a Mormon family and a Catholic family (hereinafter "the Does"), (15) both of whose children attended SFISD, filed suit in the District Court for the Southern District of Texas, contending that SFISD's policy regarding student prayer violated the Establishment Clause of the First Amendment. (16) (The Does also sued several employees, administrators, board members, and trustees of SFISD in their individual capacities.) (17) The Does accumulated evidence of a wide variety of "disturbing incidents," including a teacher's disparaging remarks regarding Mormonism and the distribution of Baptist literature by teachers. (18)

    In May 1995, as an "`emergency' response" to the district court's granting of a preliminary injunction while the action was still pending in court, SFISD changed its policy and permitted, but did not require, student prayer to be delivered at football games. (19) After another review of the policy in July 1995, SFISD amended it again, this time in anticipatory response to future court orders enjoining their policy. (20) The amendment provided that only upon the issuance of such a court order would the message delivered at the graduation ceremony be required to be nonsectarian and nonproselytizing in nature. (21) It was not until October 1995 that SFISD instituted an official policy specifically permitting prayer at football games. (22) The October 1995 policy provided that the students would vote on whether prayer should be delivered at the football games. (23) If the student body voted in the affirmative, then it would elect, by secret ballot from a list of volunteers, a student chaplain to deliver the prayer. (24)

    The district court enjoined SFISD from enforcing the first, "openended" alternative of the October 1995 policy. (25) Both the Does and SFISD appealed to the Fifth Circuit. (26) On appeal, SFISD argued that the first alternative policy was permissible, and that, even if the first alternative was found unconstitutional, the second alternative policy clearly was permissible. (27) The Does maintained that both alternatives ran afoul of the Establishment Clause. (28)

    The Fifth Circuit struck down both policies, relying heavily on its own precedent. (29) The Fifth Circuit handed down its ruling in two essential parts: first, SFISD's policy violated the Establishment Clause insofar as the policy permitted sectarian, proselytizing prayer; (30) and second, protections afforded to invocations at graduation ceremonies cannot be extended to protect prayers at sporting events. (31) The Fifth Circuit applied the three dominant Establishment Clause tests (32)--the Lemon test, the endorsement test, and the coercion test--in reaching its decision. (33)


    1. The Lemon Test

      In Lemon v. Kurtzman, (34) the Supreme Court formulated a test that remains

      the foundation of present-day Establishment Clause facial challenges. (35) The Lemon test contains three crucial prongs, the first two of which grew out of the Supreme Court's decision in Board of Education v. Allen, (36) and the third of which came from the Court's decision in Walz v. Tax Commission. (37) "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion." (38) "[F]inally, the statute must not foster `an excessive government entanglement with religion.'" (39) This three-prong test addresses the programmatic aspects of a governmental act, on the theory that examining the form of the relationship between church and state will shed some light on its substance. (40)

      The first prong requires the court to inquire into the intent of the governmental body or actor, by examining the language of the act as well as its legislative, regulatory, or judicial history. (41) The second prong requires the court to examine the result of the governmental policy and determine if its principal or primary effect is either the advancement or inhibition of religion. (42) The final--and arguably most important--prong requires the court to ensure that the relationship between government and religion is not so extensive or complex as to weaken or erode the wall of separation between church and state. (43)

      If a program satisfies all three prongs of the test, a more probing inquiry into the program's appearance (44) and into the extent to which the program may be forced on dissenters may be required. (45) Unlike other Establishment Clause tests and inquiries, the Lemon test is limited to the practical aspects of the government action, is far less intrusive into the philosophy behind the action, and is relatively deferential to the justification. (46) However, the test has received severe criticism from many Justices, particularly Chief Justice William Rehnquist. (47)

    2. The Endorsement Test

      The endorsement test, first articulated by Justice Sandra Day O'Connor's concurring opinion in Lynch v. Donnelly, (48) often overshadows the importance and viability of the Lemon test; indeed, some even believe that the endorsement test has greater utility than the Lemon inquiry. (49) However, the endorsement test is applied only after a government policy has satisfied the first and second prongs of the Lemon test, insofar as the policy must have a secular purpose and not have the principal effect of advancing religion. (50) The endorsement test determines whether the policy appears, to a reasonable and objective observer, to be an endorsement of religion by the state. (51) In effect, it sharpens the judicial inquiry of the purpose and effect prongs by forcing jurists to consider even the mere appearance of endorsement. (52)

      Government endorsement of religion is a "more direct infringement" on an individual's rights than the mere entanglement of church and state. (53) "Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." (54) Additionally, endorsement is more than the entanglement or involvement of government with religion; it is the express approval of religion by the state and the impermissible attribution of religion to the state. (55)

      Accordingly, the endorsement test has been refined and presently protects citizens against two types of endorsement. First, government cannot endorse, favor, promote, or prefer any religious belief or practice. (56) Second, it cannot endorse, favor, promote, or prefer--generally--religion or the practice of religion to the nonpractice thereof, and vice-versa. (57) Indeed, this test goes beyond the facial inquiry provided by the Lemon test, resulting in the invalidation of far more policies. (58) Additionally, the deference and presumption of secularity given to governmental policy in the language of the Lemon test is not present under endorsement...

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