Dispatches from the Creation Wars

Some of you may have seen the story of a Las Vegas high school cutting off a speech by the school’s valedictorian because she deviated from the approved script and began talking about her faith in God. And this is one case where I’m going to part ways with the ACLU; the school was wrong, both in cutting off the speech and in attempting to censor it in the first place. The school and the ACLU are both arguing that because the graduation is a school-sponsored event, the valedictorian’s speech amounts to school-sponsored speech:

Officials and a lawyer with the American Civil Liberties Union said Friday that administrators followed federal law when they cut the microphone on Foothill High School valedictorian Brittany McComb as she began deviating from a preapproved speech and reading from a version that mentioned God and contained biblical references.

“There should be no controversy here,” ACLU lawyer Allen Lichtenstein said. “It’s important for people to understand that a student was given a school-sponsored forum by a school and therefore, in essence, it was a school-sponsored speech.”

Administrators who vetted an early draft of McComb’s speech cut six references to God or Christ, and omitted two biblical references. They also deleted a detailed reference to the crucifixion of Christ.


I disagree. This is not a case where the school has deliberately arranged for a minister to lead the audience in prayer, nor is it a case where a school official is using their position to proselytize others for their religion. Each year, the valedictorian of the class gets to speak at the graduation ceremony, as many schools allow. What that student chooses to speak about is up to them. The government should not tell them what they can’t say anymore than it should tell them what they must say.

The valedictorian has earned, through their hard work, their opportunity to speak. Most of them will take that opportunity to review their time in school, talk about the future and their hopes for it, and to thank parents, teachers and others who have helped them achieve their goals. And in some cases, that student is going to strongly believe that their achievements were aided by God, and they have every right to say so because they are speaking for themselves, not for the school.

The folly of suggesting that her speech is the same as government speech should be shown merely be reference to the fact that the speaker one year may thank Jesus, the next year the speaker might thank Allah, and the next year the speaker might be an atheist who says, “We can achieve the most by not spending our time worrying about some mythical afterlife, but by focusing on how to make this world a better place.” Surely the government isn’t endorsing all three conflicting statements? Of course not. They are endorsing none of them, as each speech’s content reflects the thoughts of the student, not school officials.

Indeed, I would argue that the school’s policy presents a much bigger first amendment problem than it pretends to solve. As the article says, the policy requires that government officials decide what is and isn’t allowed based on very vague and subjective criteria:

The Clark County School District free speech regulations prohibit district officials from organizing a prayer at graduation or selecting speakers for such events in a manner that favors religious speech or a prayer.

The policy does allow for religious expression at school ceremonies and says speakers chosen “on the basis of genuinely neutral, evenhanded criteria” are responsible for the content of their expression and “it may not be restricted because of its religious (or anti-religious) content.”

District lawyer Bill Hoffman said the regulation allows students to talk about religion, but speeches can’t cross into the realm of preaching.

“We encourage people to talk about religion and the impact on their lives. But when that discussion crosses over to become proselytizing, then we to tell students they can’t do that,” Hoffman said.

Unless someone can come up with some objective standard by which to determine when someone is merely “talking about the impact of religion on their life” and when they are “preaching”, this is precisely the sort of vague rule that the courts strike down every day. It’s also prior restraint that causes the very problem it ostensibly tries to fight – if the school does tell the student what they can and can’t say, then it is government endorsement of the content of their speech. And that means any references to religion, pre-approved by school officials, should be gone. The solution is for the school to stay out of it entirely. The student earns the right to speak at the graduation; let them speak their mind, not the minds of government officials.

Comments

  1. #1 Canoga Dave
    June 19, 2006

    Ed, what are your thoughts about a student who offers up a prayer during the address or asks the audience to join in on one? Would the former be acceptable and the latter not?

  2. #2 Ted
    June 19, 2006

    The student earns the right to speak at the graduation; let them speak their mind, not the minds of government officials.

    Where is this valedictory right, you speak of? Is this something that’s pounded into the brains of HS students everywhere during daily classes; that if they work hard, they can have the honor to speak a farewell speech that others can’t give? I think it’s customary or traditional to have a veledictorian give the speech, but having attended a number of graduation speeches, I’m mostly amazed at their low quality. They may be geeks, but they drone on interminably, and mercifully, I do hope that some adult somewhere has helped them with it although we sit through them and mostly grimace through the experience putting it down to youth.

    I’d have to say that on a highly selfish basis, I disagree with you. I’m there as a captive audience, and the less controversy, the faster the process goes and we’re outta there. The school gives them the podium, and practically makes us the captive audience; so I appreciate speed and efficiency. I don’t appreciate surprises or making anyone in the audience uncomfortable. Telling me tough nuggies, is just liable to get me even more uppity over the entire affair. They finished a four year HS curriculum in America (marginally I’m told), not a four year tour of duty in Iraq (which allegedly they can’t find on a map).

    Naah, I don’t think that valedictory speeches are specifically a right. All the students have a basic right to speak, but the school puts the mike in the hand.

  3. #3 Ed Brayton
    June 19, 2006

    Canoga Dave wrote:

    Ed, what are your thoughts about a student who offers up a prayer during the address or asks the audience to join in on one? Would the former be acceptable and the latter not?

    I think either would be acceptable as long as the student was not appointed to be the speaker for that purpose. It would be a very different situation if, for example, a school held a competition for who would speak at graduation and chose the winner on the basis of the content of their proposed speech there (and there are some schools that do exactly that; my high school was one of them). In that case, the school, for all practical purposes, is responsible for the content of the speech and is endorsing it because they will have chosen a speech with religious content over one without. But in this case, the process for choosing the graduation speaker is automated and has nothing to do with what they might or might not say there – they are given that honor by virtue of being the valedictorian of the class. That student might be a Christian, a Muslim, a Hindu, an Atheist, or what have you, and their beliefs may well play a role in what they wish to say in such a circumstance, but there is no endorsement of that message, either implicit or explicit, because of the manner by which the speaker is chosen. So either of your hypotheticals would be fine with me, as it is not the government speaking to you, it is an individual speaking to you.

  4. #4 Jim Anderson
    June 19, 2006

    I agree with Ted: there is no right to speak at graduation. It is by invitation of the principal, the district, the activities director, or whoever in that circumstance is in charge of the event, which varies from school to school. For example, our student speaker was elected by his peers (and gave a great speech–pithy and brief); we had no valedictory address. As faculty speaker, I was elected by the senior class as well. (Unsurprisingly, his speech was vetted, while mine wasn’t.)

    Second, though, if granted the bully pulpit, the students indeed speak for themselves, and not for the school. Administrators concerned about students running afoul of conventions should simply insert a disclaimer into the program. 99% of inappropriate behavior at graduations comes as a result of administrators’ ham-handedness in enforcing silly and draconian rules. The vetters, then, deserve defying.

    Shame, vituperation, back-turning, angry boos–the audience, not the administration, should decide the proper response to an offensive speech.

  5. #5 Ed Brayton
    June 19, 2006

    Ted wrote:

    Where is this valedictory right, you speak of?

    There is no general right, nor did I suggest there was. It depends entirely on how the school chooses student graduation speakers. In many cases, probably most, the valedictorian gets to speak at graduation. My school was an exception, actually. In my school, anyone who wanted to speak at graduation had to submit their speech in advance and the administration chose which one would get to speak; as I explained above in my answer to Dave, that changes the analysis completely because that would constitute de facto endorsement of the content of that speech.

    I think it’s customary or traditional to have a veledictorian give the speech, but having attended a number of graduation speeches, I’m mostly amazed at their low quality. They may be geeks, but they drone on interminably, and mercifully, I do hope that some adult somewhere has helped them with it although we sit through them and mostly grimace through the experience putting it down to youth.

    On that, we agree completely. I tend to loathe commencement speeches and find them excruciating to sit through. But that has no bearing on this constitutional question.

    I’d have to say that on a highly selfish basis, I disagree with you. I’m there as a captive audience, and the less controversy, the faster the process goes and we’re outta there. The school gives them the podium, and practically makes us the captive audience; so I appreciate speed and efficiency. I don’t appreciate surprises or making anyone in the audience uncomfortable.

    Well, the reality is that your personal feelings of discomfort or your personal preferences (which I happen to share) aren’t really germane to the constitutional question. The greatest discomfort one feels at most graduations, as you and I agreed above, is the interminable boredom of the speeches typically given; it does not follow, however, that it is unconstitutional for the school to make us uncomfortable in that manner. The fact is that there are many things that a graduation speaker could say that might make people in the audience feel uncomfortable. One might speak of their intent to join the peace corps to help the poor and oppressed around the world and to counter the damage that an aggressive American foreign policy has done to our standing with the other nations of the world. That would certainly offend many. Yet another might say the opposite, that they will be joining the military to defend this country and to help execute the will of the US around the world. That would offend many others. But no one has a right not to be offended by the beliefs of another, regardless of the setting.

    It does no good merely to point out that the government provides the microphone and the forum for the expression of such views because that is the case in all sorts of situations. Rallies take place on public property, with government permits, using government facilities, and with taxpayer-funded police protection, and so forth, hundreds of times every day in places all over the nation. As long as the government does not determine what can and can’t be said there on the basis of some sort of viewpoint discrimination, there is no government endorsement of such speech. That’s why there is a distinction between a situation where the school chose the speaker based on the content of their speech, and a situation where the speaker wins the right to speak on the basis of an objective and non-content-related factor.

  6. #6 flatlander100
    June 19, 2006

    I don’t think it’s as clear cut as you do, Ed. When my youngest graduated HS in Louisiana, the valedictorian spoke exclusively of her relationship with god. I didn’t particularly want to hear about that, but I didn’t have a problem with her doing it until she ended with an extended come-to-Jesus appeal to me [everyone in the audience, which included me] to reform my life and accept Jesus as my personal savior. Testifying about how god helped her through math is one thing. Seizing the graduation pulpit to prostelytize is quite another.
    I think too that the “stand and join me in prayer” option is over the line as well. I’m not sure getting great grades entitles you to prestelytize at captive audience at a public civic event at a public school, or to ask it to rise and join you in prayer.

  7. #7 Ed Brayton
    June 19, 2006

    I’m not arguing that being valedictorian entitles one to proselytize. I’m arguing that if the speaker is chosen merely by virtue of being valedictorian, this eliminates the problem of government endorsement of the content of their speech. The speaker than might take any of a thousand conflicting positions that might bother someone, but in no case would it constitute the government endorsing the content of that speech. It makes the establishment clause problem go away, and that’s all that really matters from a legal point of view. I can understand why someone would be bothered by it. If I was in the audience, I probably wouldn’t like it much, but I don’t like graduation speeches in general and find most of them offensive merely as a result of the unoriginal pablum they tend to be riddled with. But my discomfort does not a constitutional challenge make.

  8. #8 Canoga Dave
    June 19, 2006

    flatlander’s experience illustrates the problem perfectly. Some types of speech might be prohibited because they stop being merely speech. When the valedictorian turns the commencement into a religious service she crosses a line and the fact that next year we might have a religious service of a different creed does not erase that line. Further, the idea that one could protest the act while it is happening, as Jim suggests, seems naive. Once the commencement becomes a religious service you are now no longer protesting speech but desecrating a sacred act. You’d better be pretty damn brave to do that.

  9. #9 Ed Brayton
    June 19, 2006

    I think those comments illustrate why such comments might make someone uncomfortable; I agree with them, it would make me uncomfortable as well. I just don’t think that makes any sort of argument about the constitutionality issue.

  10. #10 Ted
    June 19, 2006

    I don’t disagree with your general points Ed, I just find it punishing that social convention keeps me a prisoner there. I have no grief with bad speeches or offensive speeches given in my absence, but if someone sits me down and practically makes me listen then I get aggitated because that’s how we treat people in Gitmo.

    I could avoid this situation by simply requesting the school to send us the diploma with a ceremony opt-out letter. It used to be allowed, I don’t know why it wouldn’t still be allowed. But there’s the thing about the ceremony being for all the students, not just the one making the controversial statement. Do I punish my kid by making a moral stand just because there’s potential for offense since the adults running the show don’t have a good handle on it?

    I don’t think your comparison to speechifying on public property and providing police support applies because I usually am free to leave. Again, if someone tied me down and made me listen to stuff I found objectionable, I think I’d have a case on other grounds.

    I’m not a constitutional scholar, but I thought that rights of minors were different. Can’t vote. Can’t drink. Can’t have sex (dependent on state), and so on. Can schools control the content of school newspapers?

    The greatest discomfort one feels at most graduations, as you and I agreed above, is the interminable boredom of the speeches typically given; it does not follow, however, that it is unconstitutional for the school to make us uncomfortable in that manner. The fact is that there are many things that a graduation speaker could say that might make people in the audience feel uncomfortable. One might speak of their intent to join the peace corps to help the poor and oppressed around the world and to counter the damage that an aggressive American foreign policy has done to our standing with the other nations of the world. That would certainly offend many. Yet another might say the opposite, that they will be joining the military to defend this country and to help execute the will of the US around the world. That would offend many others. But no one has a right not to be offended by the beliefs of another, regardless of the setting.

    The real question I’m asking is if this is not a right, but a tradition, why go on with it? Why don’t we just NOT have it in the current form. If you gotta have it, maybe the speech can be an insert into the program that I can read if I choose, or crumple up and toss if I don’t. If it’s a good speech I’ll save it. If it’s a bad speech it’ll show up when they run for office. Like typepad requires — once they write those babies down, they’ll own it for good.

  11. #11 Canoga Dave
    June 19, 2006

    Ed, are there no restrictions the school can enforce? What about slander?

  12. #12 Ed Brayton
    June 19, 2006

    Ted wrote:

    But there’s the thing about the ceremony being for all the students, not just the one making the controversial statement. Do I punish my kid by making a moral stand just because there’s potential for offense since the adults running the show don’t have a good handle on it?

    That’s up to you, but I certainly wouldn’t avoid the event based on the potential that someone might say something I don’t like (nor do I think allowing the government to censor the valedictorian’s speech would eliminate the potential that someone there will say something you don’t like). I think you just have to accept the fact that others have beliefs that disagree with yours and they have a right to express them (which is distinct from any claim that the government should endorse them). None of us has a right not to be confronted with ideas we are bothered by. It’s an inevitable aspect of living in a society that values freedom of speech.

    I don’t think your comparison to speechifying on public property and providing police support applies because I usually am free to leave. Again, if someone tied me down and made me listen to stuff I found objectionable, I think I’d have a case on other grounds.

    But that simply isn’t analogous here. You are not forced to attend a graduation. And one thing you know about graduations is that there will be speeches made. That means that someone might say something you object to – you run that risk anytime you attend any event where people are giving speeches.

    I’m not a constitutional scholar, but I thought that rights of minors were different. Can’t vote. Can’t drink. Can’t have sex (dependent on state), and so on. Can schools control the content of school newspapers?

    It isn’t as simple as whether the rights of minors are different, as they obviously are in many circumstances. The constitutional question is whether the school can engage in viewpoint discrimination in setting such limits.

    The real question I’m asking is if this is not a right, but a tradition, why go on with it? Why don’t we just NOT have it in the current form.

    Well, the school certainly doesn’t have to let valedictorians speak at all, and many schools don’t. They don’t have to let any student speak, or anyone else speak for that matter. The constitutional question, though, is distinct from this and that’s what I was addressing.

  13. #13 Ed Brayton
    June 19, 2006

    Canoga Dave wrote:

    Ed, are there no restrictions the school can enforce? What about slander?

    Of course the school can enforce a restriction on slander, which would be against the law regardless of whether it takes place at a graduation ceremony or not. There are really only two relevant questions here from a constitutional viewpoint:

    1. Is there government endorsement of the message of the speaker? I think the answer to that is clearly no because the government did not determine the content of the speech.

    2. Is the government engaging in viewpoint discrimination by allowing a speaker to make statements of their non-religious beliefs, but not their religious beliefs? I think the answer to that is yes.

  14. #14 JeremySN
    June 19, 2006

    Many of the arguments being presented here seem to illustrate the age-old issue of freedom for me, but not for thee. As Ed said, the Constitutional issue here is not whether it offends your sensibilities to listen to the ramblings of a proselytizing teenager or not. The issue is whether the school has the right to censor a student’s speech on the sole basis that it contains religious content. There is an endless list of things that any person can be offended by in a public speech setting. Ed has already pointed out several different examples. The point is that if the school gives the student total control over content, they should have it, provided the speech does not cross over into profanity, or overtly hateful sentiment. In my opinion this would be the one acceptable exception. And yes, Jim is correct. If you don’t want to take part in a religious demonstration such as an invitation to stand and pray, you don’t have to. Don’t blame your own lack of fortitude on someone else’s lack of good taste.

  15. #15 ThePolynomial
    June 19, 2006

    Ed – I think you passed over Canoga Dave’s point pretty quickly because of his specific example. Does the school really have no right to censor the speech for appropriateness (um, propriety)? If she decided to spend her time talking about how cute Brangelina’s baby is, could they really not censor that? Or if she decided to give a detailed, biologically accurate description of how a baby is conceived, could they not censor that?

    I’m sure any student who gave a speech at my HS graduation (we don’t have class rank, so there was no valedictorian speech) had to have whatever they said approved by a faculty member. Just like any off-topic speech, I’m sure a call to Christ would have not been approved. If this isn’t “because it’s religion” but is rather “because it’s just inappropriate,” is it still unconstitutional to censor the speech?

  16. #16 Canoga Dave
    June 19, 2006

    I want to again make the disunion between talking about religion, which we agree is legal, and transforming a civil event into a religious one through speech, which I see as an establishment of religion. If you think that the latter is legal then you either disagree that the transformation is taking place or that the transformation is an establishment.

    As a non-religious person, or one affiliated with a sect of Christianity, it might be easy to overlook the fact that a transformation is occurring, but inclusive prayers and alter calls are unique elements of religious services. For members of different faiths the participatory nature of these religious acts might actually violate tenants of their religion and force them to leave.

    On the issue of establishment the argument seems to be that since the school is not endorsing or creating the establishment, and that the endorser is not selected on religious grounds, it is constitutional. I understand the logic but something doesn’t feel right about it. I would like to argue something about ends vs means but can’t quite find it. The ends are that you have a religious ceremony replacing a civil one but its OK because the means are the choice of private citizen’s. It just seems like a loophole, which, I know, the law is full of.

  17. #17 Canoga Dave
    June 19, 2006

    oops, I meant:

    I want to again make the distinction between…

    But maybe is a distinction without a diffenence? :)

  18. #18 Ed Brayton
    June 19, 2006

    ThePolynomial wrote:

    Ed – I think you passed over Canoga Dave’s point pretty quickly because of his specific example. Does the school really have no right to censor the speech for appropriateness (um, propriety)?

    My guess is that the courts would probably uphold censorship on the basis of propriety, such as profanity or obscenity. The courts generally have allowed such restrictions. For example, they could prevent a student from wearing a shirt that said “Fuck you all”. But the courts have generally distinguished such restrictions from viewpoint discrimination, where the government is choosing only certain acceptable views (as opposed to words) that can be expressed.

    If she decided to spend her time talking about how cute Brangelina’s baby is, could they really not censor that? Or if she decided to give a detailed, biologically accurate description of how a baby is conceived, could they not censor that?

    I don’t know the answer to that one.

    I’m sure any student who gave a speech at my HS graduation (we don’t have class rank, so there was no valedictorian speech) had to have whatever they said approved by a faculty member. Just like any off-topic speech, I’m sure a call to Christ would have not been approved. If this isn’t “because it’s religion” but is rather “because it’s just inappropriate,” is it still unconstitutional to censor the speech?

    Probably, but I can’t say for certain. The key issue in such cases really is viewpoint discrimination, and the courts have generally said that government agencies cannot prevent a particular viewpoint from being expressed if other viewpoints are allowed. And in this case, if a non-religious valedictorian can give a speech talking about the importance of heeding the advice of Nietzsche in some regard, or speaking of the influence that David Hume or Robert Ingersoll had on their thinking, then they cannot prevent a Christian speaker from talking about the importance of their faith, or the influence of Jesus Christ on them, and so forth.

    It should be noted that there are two different issues here, one involving the establishment clause and one involving the free speech clause. The establishment clause issue is whether the government must censor religious statements by student speakers who were chosen for reasons unrelated to their beliefs; the free speech issue is whether the government can censor such speech. The answers are independent of one another to large degree.

  19. #19 Ed Brayton
    June 19, 2006

    Canoga Dave wrote:

    I want to again make the disunion between talking about religion, which we agree is legal, and transforming a civil event into a religious one through speech, which I see as an establishment of religion. If you think that the latter is legal then you either disagree that the transformation is taking place or that the transformation is an establishment.

    Or both, perhaps. But in this case, primarily the first. A student speaker who was chosen by virtue of their achievements rather than their beliefs speaking about the influence of God in her life does not transform the event into a religious one (any more than the same speaker discussing the influence of, say, John Stuart Mill on her life would turn it into a “utilitarian event”). It’s a single speaker representing only their own views.

    As a non-religious person, or one affiliated with a sect of Christianity, it might be easy to overlook the fact that a transformation is occurring, but inclusive prayers and alter calls are unique elements of religious services. For members of different faiths the participatory nature of these religious acts might actually violate tenants of their religion and force them to leave.

    I think an altar call would clearly be inappropriate, as this controls the structure of the event and asks for action from the audience, as opposed to merely expressing the views of the speaker; there is a difference between someone saying, “I think you should give your life to Christ” and saying, “I’m going to change the entire structure of this event and ask that time be taken out for people to leave their seats and come down front for an altar call.” There certainly is a distinction there. As for a prayer, perhaps the area is a bit more gray there. I don’t think there would be anything wrong with someone saying something like, “Prayer has been an important part of my life and has helped me get to where I am. And I’d like to take a moment to say a prayer of thanks for having reached this milestone in my life and anyone who is so inclined, please join with me in doing so.” The law largely exists to make such distinctions and they aren’t always exquisitely clear.

  20. #20 pough
    June 19, 2006

    The bigger question, in my mind, is why people go to graduation ceremonies at all. I went to the beach that day. I haven’t spoken to a single person from my grad class who didn’t envy my decision.

  21. #21 wheatdogg
    June 19, 2006

    Can schools control the content of school newspapers?

    Since 1988, at least, yes they can. The pertinent SCOTUS case is Hazelwood School District v. Kuhlmeier (1988), in which the Court placed limits on the First Amendment rights of student journalists, so long as the limits had some pedagogical basis. In other words, administrators were not given carte blanche, but they acquired additional rights as censors.

    Previously, SCOTUS and the lower courts were more amenable to assigning students the same First Amendment rights as professional journalists and other adults. With this 1988 case, SCOTUS veered to a more conservative interpretation of the Constitution.

    The Student Press Law Center has an excellent analysis of the case and its implications: http://www.splc.org/legalresearch.asp?id=4

    I agree with Ed on this one. The administration should have left well enough alone, and not removed all of the religious references. A student with enough nerve will defy the censorship either to (a) witness to her or his faith or (b) stick it to the man. Ministers and church youth leaders would encourage option (a). Normal adolescent behavior would favor option (b).

    Now the school administration has to look down the wrong end of a double-barrelled shotgun. They stand accused of infringing on the student’s right of free speech and of being anti-Christian.

  22. #22 Ebonmuse
    June 19, 2006

    This is a tough, tough issue. I acknowledge that the school didn’t select the speaker on the basis of the content of her speech, which weakens the endorsement argument. On the other hand, I think it could still be argued that the school is, de facto, sponsoring the content of the student’s speech just by virtue of graduation being an official school event. And certainly, no student has a right to speak at graduation.

    Think of it this way: If the valedictorian wanted to use her speech as an opportunity to trash the school, to talk about how much she hated her time there and how poor the quality of the education she received was, then the school administrators would certainly block her from saying those things, and I doubt anyone would argue with their right to do that. It is, after all, their event, and it is not a public forum where just anyone can stand up and speak. They can choose whom to invite, and they can condition those invitations on the content of what the speaker plans to say. If this girl agreed to their edits as a condition of giving her speech and then decided to violate that agreement once she was up at the podium, I don’t think the school did anything wrong in cutting her off. She broke the arrangement she agreed to; they would be justified in immediately withdrawing their permission for her to speak in that case.

  23. #23 Ed Brayton
    June 19, 2006

    The argument that no student has a right to speak at graduation is really a red herring. It doesn’t matter whether one has a right to speak there or not, the crux of the matter is still viewpoint discrimination. If the administration chose a speaker specifically because they were going to speak about her faith in God – say chose a religious speech from a set of speeches submitted to them – I think we would agree that this would amount to government endorsement. By the same token, however, if the speaker is chosen on an objective basis not related to content, but the government allows them to speak about any influence on their life as long as it’s not religious, then the government is engaging in precisely the sort of viewpoint discrimination that we agreed was out of bounds in the first example.

  24. #24 Paul S
    June 20, 2006

    I’m torn on this one. I can see it both ways.

    On the one hand, if the school takes responsibility for the student’s speech (through the “approval” process), then they are literally stating that what that student says from the podium has been approved by the school. If she then begins talking about religion, well, you see the problem.

    On the other hand, does the school have any business giving approval or disapproval for a speech of this nature? Arguably no. If they aren’t paying for it, then they shouldn’t have much if any control over it. The Supreme Court has held that use of school facilities for religious purposes is not an unconstitutional “entanglement with religion” as long as school resources are made available on an equal basis to any and all religions.

    Unfortunately, this can work only if it’s in line with what people expect. If the valedictorian had held forth on, say, white superiority or eugenics, then people would be up in arms. If the school officials had not vetted that speech, they would be drawn and quartered and asked why not.

    As long as people demand paternalism from their government, and especially their schools, those institutions will be bound to supply it.

  25. #25 Ted
    June 20, 2006

    Probably beating a dead horse, but what the hay. I just find it hard to understand that viewpoint discrimination isn’t occurring during the vetting/approval process which I believe is a point presented above, and that people appear to accept.

    The argument that no student has a right to speak at graduation is really a red herring.

    Ok, lets try a different herring. Can we look at this as a voluntary contract between the student and the school administration? There is no inherent right to a valedictory speech and the administration extends an administrative, conditional invitation (conditional to the type of administrative and pedagogical controls that they use in enforcing day-to-day control).

    The school selects a student and requires a vetting/approval process. The vetting/approval process isn’t in question and is stipulated by you and the article (…cutting off a speech by the school’s valedictorian because she deviated from the approved script…). I imagine that the invitation to speak is conditional on the approved script.

    The student then materially deviates from the script of the speech that was approved and was vetted. Is this cause for a withdrawal of the invitation to speak since the student deviated from the agreed conditions? Should the withdrawal be extended after the speech is given?

    It seems to me that a contract was broken. Why does the school still have to uphold their end of the contract and provide amplification to the speech? If the school sees this invitation/speaker interaction as a contract, and it’s broken, should the school let it go on, or cut the mike as soon as they detect breach?

    If one performs a service and the other end of the contract is broken, are you required to complete your end of the bargain?

  26. #26 Ed Brayton
    June 20, 2006

    Ted-

    The reason I say that the argument that no one has a right to speak at a graduation is a red herring is because even if it’s true – and of course, it is – it doesn’t have any effect on the legal reality or not. There are all sorts of situations where the government extends a privilege to someone, but they still cannot engage in viewpoint discrimination to do it. A government that extends such privileges only to Christians, for example, would still be a problem, wouldn’t it? Of course it would. Whether it’s a right or not simply has no bearing on the legal question. Even if, as you say, this is a situation where the invitation to speak is conditioned and the speaker has to agree to those conditions before hand, those conditions cannot be discriminatory based upon the viewpoint the speaker might express, particularly in terms of religion. If the tables were flipped around, I think this would be obvious – if the school conditioned their invitation to speak with a requirement that they speak about God or Christianity, you would be up in arms (and rightly so). But here they condition it upon not talking about those things and they do so based upon a false argument that they have to avoid an establishment clause problem.

  27. #27 Dave S.
    June 20, 2006

    Ted –

    It seems to me that a contract was broken.

    It seems to me that one cannot have a contract to do some illegal thing at all. In this instance, the school cannot legally deprive her of her right to religious expression, any more than they could force her to express religious sentiments if she didn’t want to.

  28. #28 Ted
    June 20, 2006

    Ed and Dave S; I must be as dumb as a rock because I don’t get it, and apparently won’t in our lifetime, but I’m one behind Canoga Dave, so forgive me and I promise that this is the last in the thread. I will dedicate myself to reading up on the subject. I still can’t figure out the illegality inherent when both parties seem to have agreed on it previously without contention.

    Even if, as you say, this is a situation where the invitation to speak is conditioned and the speaker has to agree to those conditions before hand, those conditions cannot be discriminatory based upon the viewpoint the speaker might express, particularly in terms of religion. If the tables were flipped around, I think this would be obvious – if the school conditioned their invitation to speak with a requirement that they speak about God or Christianity, you would be up in arms (and rightly so). But here they condition it upon not talking about those things and they do so based upon a false argument that they have to avoid an establishment clause problem.

    I guess my source of confusion is that now you’re saying that the approval and vetting process is illegal too because the approved speech deviated from the Godly version and that the administrators vetting it tried illegally to keep her muzzled and on topic. I didn’t get that in the first reading of the original post.

    I’m resolved not to get the complex intricacies of this crimethought, and simplemindedly, I’m going to put it down to a 4.7 GPA student that sits across the table from an administrator, that says and agrees to one thing and then does something else when time comes. On a personal level, I find that a very serious lack of integrity to start your adult life on, but maybe those we culturaly despise don’t need to be treated with integrity, particularly if they’re the godless administrators of the school she was forced to attend for four years.

    “I went through four years of school at Foothill and they taught me logic and they taught me freedom of speech,” McComb said. “God’s the biggest part of my life. Just like other valedictorians thank their parents, I wanted to thank my lord and savior.”

    In the 750-word unedited version of McComb’s speech, she made two references to the lord, nine mentions of God and one mention of Christ.

    In the version approved by school officials, six of those words were omitted along with two biblical references. Also deleted from her speech was a reference to God’s love being so great that he gave his only son to suffer an excruciated death in order to cover everyone’s shortcomings and forge a path to heaven.

    Being a veledictorian, she probably didn’t understand the integrity requirements inherent in agreeing to do one thing and then doing another a short time later. They taught her logic and free speech, but obviously failed on the subject of integrity. Likewise, she probably also didn’t understand that this would be another flashpoint in the culture wars with her classmates getting fragged in the process, because holy grenades are a blessing on us all. If I was a suspicious person I’d think that this bit of (uncalculated?) bravery would at some point get her a bit on Fox News. A fortuitous turn and one that demonstrates the benefit of yelling God in a crowded firehouse more often.

    But you know, that bit about “excruciating death to cover my shortcomings” (stupidity being at the top of the shortcomings list for me), sounds pretty preachy.

  29. #29 Ed Brayton
    June 20, 2006

    Ted wrote:

    I guess my source of confusion is that now you’re saying that the approval and vetting process is illegal too because the approved speech deviated from the Godly version and that the administrators vetting it tried illegally to keep her muzzled and on topic. I didn’t get that in the first reading of the original post.

    Actually, my argument is that by vetting the speech the school actually does send a message of endorsement, which means that they should have had to remove all religious statements from the speech. Instead, they only removed some of them, which means they’re picking and choosing which religious statements have government approval and which do not. That actually creates an establishment clause problem, which is what they claim they are required to avoid. The solution, obviously, is not to vette the speech at all and to leave the speech purely as an expression of the student’s beliefs.

    As for the arguments about the student’s lack of integrity, that’s not relevant to the argument I’m making. I’ve not addressed the question of whether the student did the right thing; I’ve addressed whether the school’s arguments defending their actions are legally correct.

  30. #30 wheatdogg
    June 20, 2006

    I teach high school, so I have a particular interest in this issue. Here are a few of my thoughts.

    Brittany McCombs presumably had the highest GPA in her graduating class, making her eligible to be valedictorian. Depending on the school, her eligibility either automatically confers the honor on her, or adds her name to a shortlist of candidates, from which the faculty and/or her classmates choose one speaker. Being named valedictorian is an award for scholarship as well as an invitation to address the graduation assembly.

    There was an implicit agreement between McCombs and the school officials that they would vet her speech beforehand, and remove any potentially offensive or problematic sections. There was no contract, per se, although we could assume both parties were aware of the pertinent rules about public addresses.

    McCombs’ speech contained religious references which school officials felt violated the establishment clause. School officials then censored the speech to remove the problematic references. It is possible that school officials at this point violated their own rules regarding censorship, as well as infringed on McCombs’ right of free expression. I am not at all confident that the school or the ACLU will have an easy time defending school officials’ actions, if the tone of the original speech was to witness (describe) McCombs’ faith and not to preach or proselytize.

    Believing her rights of free expression were thereby violated, McCombs gave her speech as she originally intended. Perhaps she had religious motivations as well. If she had the intent to proselytize by ignoring the censorship, she may in fact have violated the school’s rules regarding religious content in speeches. The onus of proof would then be on her, and she might have a hard time convincing the judge of her intent to witness and not preach.

    Without a text of the original speech, it’s difficult to judge who erred where.

    School officials, realizing they have been outfoxed, pull the plug on McCombs’ mike, either to retaliate or to exercise their control of the event. Now they have in effect censored (or attempted to censor) McCombs twice, failing in their efforts both times. By pulling the plug, they may have exercised appropriate administrative control, but they simultaneously created a media event. McCombs still has the upper hand, as her message now reaches a wider audience. (There are very few valedictories that get written up in newspapers, much less lead to court cases.)

    It’s easy to be an armchair negotiator after the fact, but my advice to the school would have been not to censor the speech outright, but to discuss with McCombs a suitable compromise whereby she could convey the gist of her message without turning her speech into a sermon. If she agreed to the compromise, then giving her original speech would be a violation of a “gentleman’s agreement” — a verbal contract, as it were — which would then give school officials the right to pull the plug.

  31. #31 wheatdogg
    June 20, 2006

    Ack. Her name is McComb. Apologies.

  32. #32 Jim Babka
    June 20, 2006

    Oh my. Look at all these comments. Talk about separating pepper from fly poop. Just close the government schools. Their very existence violates the establishment clause. (Now that will keep this discussion going.)

  33. #33 Jim Babka
    June 21, 2006

    I guess I was wrong. That was a discussion-killer. :-)

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