Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Supreme Court has denied cert in the case of McComb v. Crehan, the 2006 case where a valedictorian had her microphone cut off by the school during her speech at a graduation ceremony because she began to talk about her Christian faith, a deviation from the script they had approved (they had rejected the original script and forced her to take out the religious elements).
The district court had dismissed her case and the 9th Circuit Court of Appeals upheld that dismissal. Now the Supreme Court has refused to hear the appeal, leaving the lower court rulings in place. That means there were not 4 votes on the court to hear the appeal and that is the end of the case.
But as I wrote shortly after the incident took place, I think the school was wrong in its decision to censor her speech. Because this was a situation where the student had earned the spot to give the speech by objective criteria (being valedictorian) and did not have her speech chosen among others, the content of that speech was solely an expression of her views, not the school's views. Thus, there is no establishment clause problem, there is a free speech problem and the school has engaged in content-based censorship.
I wrote then, and still believe:
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.
The irony here is that by demanding prior approval of the speech, the school is automatically forcing it to become government speech, or at least government-approved speech - and that's where the establishment clause problems comes in. Instead, they should not have any say over the content whatsoever if the speaker is picked by a neutral, objective standard.
Politics
Comments
Did you mean to say "a deviation from the script they had not approved"?
Posted by: Ivan | November 21, 2009 9:33 AM
A deviation from the approved script, not an approved deviation from the script.
Posted by: Treppenwitz | November 21, 2009 9:38 AM
Ivan, I think Ed's "had approved" modifies "script" not "deviation." So, "deviation from approved script," not "unapproved deviation from script."
Posted by: Squiddhartha | November 21, 2009 9:41 AM
That may be the ideal, but I doubt it would ever be thus in reality. What if a valedictorian wanted to talk about how porn had helped them achieve success? For simple propriety, no school admin would allow that. Of course that's an extreme case, but my larger point is that, as long as part of the writ of our schools is regulating child behavior you'll always have administrators who consider it their prerogative to decide what is and is not allowed speech wise, even in graduation speeches. That, combined with the increasingly prevalent doctrines of what could be called preventative tort (censoring unaffiliated participant behavior to prevent lawsuits), and governmental impunity, guarantees that this sort censorship will remain for some time to come.
Posted by: Julian | November 21, 2009 9:42 AM
Whatever the free speech law says about this, I think the speech was tasteless.
Posted by: Katharine | November 21, 2009 9:52 AM
Yeah, I guess scripts are more likely to be approved than are deviations. Weird how I didn't even catch the ambiguity, though.
Posted by: Ivan | November 21, 2009 9:52 AM
Ivan,
Coffee first, then blog-reading.
Trust me--I know from experience. ;)
Posted by: James Hanley | November 21, 2009 9:55 AM
This makes sense in the context of SCOTUS' restrictive free speech standard in schools, though a better description would be its restrictive free speech standard towards students whether in school or not.
Posted by: Apegod | November 21, 2009 10:27 AM
I have to agree with Julian. School administrators unfortunately have to control what happens at school functions and that means understanding and approving what a student is going to say in a speech.
It seems this student wanted to use this as an opportunity for evangelism and I don't think the school has any obligation to provide a platform for her.
Certainly it was explained to her during the approval process why it would be inappropriate for her to express her faith in the way she wished in a school sponsored speech. She decided to do it anyway and was rightfully cut off.
Posted by: Owen | November 21, 2009 10:33 AM
I think Ed is missing something here: the element of coercion. All high schools I know of require attendance at graduation (at least for teachers -- my school required us students to show up as well as members of the band.) As soon as the state forces one to attend then all viewpoints expressed at said event are under their control. In everyday life I can walk away when some twit starts prattling about the Great Gazoo in the Sky but at graduation (or a football game, or homecoming, etc) I have no choice but to listen.
Posted by: yak | November 21, 2009 10:35 AM
Ed is right, I think, in every particular. The speech isn't government speech, despite any attempt to screen it; it remains personal speech. I'd go further on that point--even if the speech were chosen by a vote (as it is in my high school, which is by the way stupid), it would still be the individual's personal speech; I'd argue that a chance to speak is a chance to speak regardless of the mechanism of choice.
Prescreening may be used for any purpose, of course, but the case isn't about a student objecting to the prior restraint. But accepting the prescreening doesn't change a speaker's rights, just as, say, a student refusing to take off a t-shirt can't be punished simply as insubordination; it's connected to the speech, and it stays that way regardless of the original situation. Even if an administrator sat with a copy of the approved script and a hand on the cut switch and threw that switch the moment the speaker deviated, I would call it impermissible censorship. Before the fact, after the fact, still censorship, so the question becomes whether the speech itself violates the existing framework of precedent in schools.
Julian, if a student started talking about porn (or made a lengthy pornographic metaphor) censorship would be permitted under Bethel--obscenity is not covered under the Tinker disruption standard (or drugs, alcohol, weapons.)
On the other hand, politics and religion are core protected speech. The decision is incorrect. I wonder why it didn't earn cert; I would have expected Scalia, Thomas, Alito, and Roberts to be all over it, unless they feared a loss.
Side note: I can vouch from direct experience that high school administrators are terrified of commencement speeches. The reason is obvious--an open microphone, a formal situation, the school board sitting there, a hall full of parents, and students with nothing, zero, to lose. You can't suspend them; there's no consequences left. So they resort to all kinds of tangled processes to exert control, and this results in the common step of a very typical school official abuse: writing censorship checks the First Amendment won't cash. In my two most recent high schools, administrators have opened commencement speeches to the student body in general, approved by a vote. They believe that this gives them more cover to control the speeches; I doubt it, but they believe it so it goes. This way the administrators can choose not just a speech but a speaker, and you bet they lobby and (I would not be surprised to learn) tinker with the count to choose a compliant speaker. The very popular iconoclast with a witty mind just always seems to lose out to the bright-eyed student council secretary. Then they make the kids choose a faculty mentor (that's me) and the mentor is, uh, reminded that the speeches need to be 'appropriate,' thus spreading the onus of restriction. Of course the speeches are vetted by the boss as well, but of course there's no way to control the kid once they take the lectern.
I was always mainly interested in steering my speakers away from the godawfully boring standard commencement tripe, and I positively ban "When we first walked in..." and a few other boilerplate nuggets. The First Amendment can take care of itself; I just don't want to be snoozed out (before the inevitable snoozing out that comes with 43 codas of Elgar and 800 names.)
ice9
Posted by: ice9 | November 21, 2009 10:49 AM
School officials simply don't have the right--naturally in the First, or under the precedents--to control speech at school functions. They think they do, but they don't. That's why there are so many free speech cases. Schools can outlaw particular things and enforce those codes, such as dress codes or obscene t-shirts etc., but they can't enforce a blanket prior restraint upon students in all areas. Set aside the practical considerations of such a policy--how do you do it? and besides the obviously counter-educational implications--what about in a class discussion in biology or health class? What about in a private counseling session? What about casual conversation between cooperating parties in a hallway? The schools can't do it because kids don't check their rights at the door.
In truth there are few occasions where students get unfettered speech opportunities, so we tend to notice less. Also, so much objectionable student speech is on the usual silly topics of sex and drugs and beer and violence, which can be censored under various SC precedents. Plus of course a lot of student speech is disruptive, and that's not permitted under TInker. And there are fewer chances to speak to broad audiences than there used to be, so we forget that it is, within narrow school constraints, free first and restricted second, and only restricted within narrow limits. That is, free speech is sharply narrowed but is still pure in schools.
So I'd say to Owen and Yak that they have it backwards, and the school powers-that-be are perfectly happy to keep in place the misconception that schools permit some speech out of the goodness of their hearts.
Coercion is another characteristic that might lead to a new precedent someday, but hasn't yet. It isn't explicit in any current precedents, simply because the whole system is already coerced. School is already compulsory. If the school itself foists the speech or practice on students, as in prayer lead by the teacher, it is relevant of course, but as Ed says that would be an establishment situation and not a free speech situation. As far as student speech, caring about "coercion" is just a matter of best educational practice. That is, it's no different if a kid makes a speech at a required assembly than if he makes an impromptu speech in the hallway, though careful schools try to avoid presenting the appearance of state sponsored religious or political opinion even if it is actually student speech in a school forum.
That's my full-monty constitutional opinion, not the opinion of schools, by the way. Schools routinely establish policies prohibiting everything that is sharp-edged, just to avoid controversy. Such policies or practices often assert that the censorship is predicated on whether the situation is all-school or required viewing or whatever; that's just a persuasive technique. It's not surprising that school policies rarely take any liberal view of what the courts might hold; why give up a power that is useful? Schools are generally confident that their policies and practices will stand up locally, and with good reason. Very large proportions of cases with good constitutional traction are never pursued because kids and parents don't want to or, more likely, have no idea that they could.
A good example of this trend is in speech codes in high schools (colleges, too, but another level). Schools routinely prohibit anti-gay speech, and extend that even to reasoned arguments that aren't disruptive or are not aimed at a particular person. So we have the situation (common) where, say, on National Coming Out Day, the halls will be full of pro-gay slogans and buttons and even announcements on school media, but a student with an anti-gay t-shirt ("Be happy, not Gay" with a couple of Biblical citations comes to mind) is ordered to cover up or face a suspension. I am not anti-gay, but I'm pro-First Amendment, and that shirt is impermissible censorship because the sentiment is clearly religious and political and is therefore core political speech and is protected. Personally I find ludicrous the argument that Christians are a persecuted minority, but I have seen lots of situations in high schools where reasonable (though perhaps annoying) religious sentiments have been censored because they annoyed. Sorry, not good enough.
ice9
ice9
Posted by: ice9 | November 21, 2009 11:29 AM
What's more silly than the belief that some sky fairy thinks you are so special that the fairy has endowed you with the skills necessary to become the valedictorian? Which is what is often allowed in speeches by students.
That aside, this student seems to have crossed the line into preaching. From the link:
Posted by: Owen | November 21, 2009 12:06 PM
I think I'll have to disagree.
Bear in mind that this church-state separation issue is secondarily about protecting the rights of religious people to say and do what they want, but PRIMARILY it is about protecting everybody else from being forced to listen and watch while the nice Christians say and do it.
Putting myself in the position of the other students, I wouldn't want to hear Miss Valedictorian go off on Jesus during MY graduation ceremony. She can do that on her own time, not while I'm held captive by my desire to celebrate a life milestone in the company of my friends and family.
Hell, I think it's disgusting to talk about Jesus at FUNERALS -- using an immensely sad event as a sales opportunity.
The school was right to, basically, tell her to STFU. It was her who caused the problem, not them.
And that business about approving Valedictory remarks, I'm okay with that too, I think. Not every aspect of it pleases me, but on the whole, I'd rather not have the celebratory event of an entire graduating class turned into a grandstand event for one.
Though you might be the valedictory speaker, a position earned after years of hard work, you also have to realize the moment is not all about YOU.
Posted by: Hank Fox | November 21, 2009 12:10 PM
Agreed Hank. Well said.
Posted by: Owen | November 21, 2009 12:48 PM
ice 9 -
According to SCOTUS school officials do have the right to control student speech whether in school or at school functions off of school grounds. Hazelwood gave those officials the power to censor student-run school papers and a broad reading of Morse supports the idea that officials can punish a student at any school sponsored event. The school context is key to allowing officials to censor speech they consider disruptive. As you suggest, there are many free speech cases but the federal courts have almost routinely upheld school officials' power to control student speech.
As for coercion, in Lee v. Weisman, the SCOTUS found indirect pressure was coercion in a school, specifically at a graduation ceremony where a Rabbi was invited to offer a non-sectarian blessing at graduation. Of course you can distinguish that on the facts b/c this speaker was not a recognized clergy member, but, in Santa Fe, the SCOTUS also invalidated student-led prayers before sporting events b/c they violated the Establishment Clause.
The problem is that the free speech clause and the religion clauses can't always be separated and, in the school context, the federal courts have been perfectly willing to provide school officials the power to shut down student speech. Under the Establishment Clause, school officials can shut down a valedictorian speaking about god through the school's microphone over the school's PA system at a school sponsored event b/c it carries the stamp of school approval. This is unlike the classroom discussion or the casual conversation between cooperating parties in the halls (as long as all parties are students) b/c they don't carry the stamp of school approval.
Posted by: Apegod | November 21, 2009 1:01 PM
Yak wrote:
No, I don't think this is the key element in the case. Even if attendance is compulsory, that does not transform everything said there from individual speech into private speech, even in the schools. For example, it is compulsory for students to attend school, but if a class has an assignment to do an oral report about someone who influenced their lives and a student decides to talk about Jesus, that is absolutely protected by the first amendment. The key distinction between individual speech expressed in a government setting and government speech is A) whether there is some form of limited public forum established; and B) whether the government controls (or should control) the content of the speech and/or chooses the speaker based upon what they're going to say.
In this case, because the graduation speaker is chosen according to entirely objective and neutral criteria, the government is not choosing the content of the message nor are they choosing the person to speak based on what they might say. So in this case, the speech expresses the views of the speaker, not the government (just like the student in class doing an oral report represents their own views and not the government's view, despite the compulsory attendance).
It would be different if, as many schools do, they had students submit speeches and the administration - i.e. government officials - chose the one they liked best and it just happened to be religious in nature. Then it could reasonably be argued that the speech represents the government's position because they chose that content over the content of other speeches.
Posted by: Ed Brayton | November 21, 2009 1:20 PM
as another first amendment fundamentalist, I'll have to agree with Ed. I wouldn't particularly enjoy listening to someone blather on about God. But it's a personal speech. And, the worst way to instil repect for our rights and freedoms is for schools to attempt to regulate the content of student speech, with the exception of hate speech, and probably obscenity. There are very few real public speeches that take place at schools anyway. And I think it's a terrible mistake to imagine that your right not to have to listen to something trumps someone else's right to express it in public. And for those defending various school administrations actions by noting that the courts have supported it, it's hardly a moral argument. It just underscores the problem. Though I'm of two minds about correcting the problem. I sometimes feel it's good if we have (slightly) fascistic school systems, because I think that can generate more of the appropriate contempt for tyrannical authority in young citizens that I think any free country needs.
Posted by: tbell1 | November 21, 2009 1:23 PM
Julian wrote:
But the question here is what forms of censorship are allowed under the First Amendment. The courts have allowed censorship of form, such as preventing the use of profanity, because that is viewpoint neutral. But if the speaker is speaking on behalf of themselves, the government cannot censor for viewpoint or content. They can't decide, for example, that you can express non-religious views but not religious views, or that you can express Republican views but not Democratic views. If a valedictorian wants to get up and say that they believe the Republicans are out to destroy public education, so if you support public education you should support the Democrats, the government cannot forbid them from doing so.
Does such non-censorship mean that we take the risk of someone getting up and saying something offensive? Of course. Welcome to a free society, where no one has a right not to be offended.
Posted by: Ed Brayton | November 21, 2009 1:24 PM
In my work at elementary schools in Canada I have observed two conflicting trends. Or at least the two trends that can lead to conflicting results.
On the one hand the school bends over backward to have a neutral position on matters of religion. Hence the annual Christmas concert is now called a Winter Concert. On the other hand individual students are encouraged to express themselves to a much a greater degree than was the case in the past. And of course some students choose to express their particular religious views.
I have walked down the hallways of a school and seen religiously explicit artwork on the walls. In one case I saw a depiction of Christ's crucifixion. Because it was the students personal expression the teacher would not have dared censored the artwork.
Perhaps this contrast of the Winter Concert and crucifixion artwork captures the appropriate balance that a school needs to acheive. The school officially takes a neutral position on religion while at the same time encouraging individual expression.
Posted by: Cheddar | November 21, 2009 1:40 PM
Keep in mind, however, that it is the School's microphone and they have the right to control it however they wish. There were certain rules for the use of said microphone. She violated those rules. Having the microphone turned off did not prevent her from continuing to speak.
She was allowed to talk about her faith, but not to proselytize.
This is the text of the speach that the school wanted removed, but she insisted on making anyway:
Posted by: Chilidog | November 21, 2009 1:45 PM
Further, she was expressly told that the microphone would be turned off if she deviated from the agreed upon speech, and SHE AGREED to those terms.
That is the issue. She agreed to the schools terms in regards to the speech, yet she failed to abide by her own agreement.
Posted by: Chilidog | November 21, 2009 1:51 PM
Spectacularly backwards. There is no right to not be offended by the speech of others.
Posted by: kehrsam | November 21, 2009 1:54 PM
The key difference here is that she was perfectly free to talk about how her faith had impacted her life, (which she did) but she was not free to tell the listeners that they have to follow her example. The first paragraph of the above quoted passage has NOTHING to do with education or graduation. The second paragraph extols the listener to follow a particular belief system.
The other two speakers mad similar references to their faith and were not cut off because they did not attempt to proselytize a particular religious viewpoint.
I agree with the court.
Posted by: Chilidog | November 21, 2009 1:59 PM
It's not a contract when coercion is involved. If I were giving the speech and the school told me what I couldn't say, I'm pretty sure I would have worked it in, even though I was an atheist at the time.
Posted by: kehrsam | November 21, 2009 2:03 PM
How is Coercion involved?
No one was forcing her to speak.
Posted by: Chilidog | November 21, 2009 2:10 PM
I strongly disagree. Once you start assigning different "grades" of religious freedom to different belief systems, you're missing the point entirely. It's the same mistake made by Christian Nation types who want their religious views to have special, enhanced freedom of religion, except you argue in the opposite direction.
Now, correct me if I'm wrong, but can't the valedictorian's speech be considered a form of a limited public forum? Sure, only one person gets to use it a year, but it's established for a secular purpose and the speaker is chosen by objective secular criteria. Can't the school limit expression in such a limited forum to a certain topic or theme? In light of that I would consider the first paragraph in the quoted text to be out of line as off-topic: it's pure theology. The second paragraph, however, is clearly a religious take on themes germane to a commencement speech: success in future endeavours and guiding principles for future life. It should have been protected.
Posted by: DaveL | November 21, 2009 2:17 PM
I disagree. Because the choice of the speaker is in fact, neutral, in regard to religion, then the government has the right to restrict that speech to neutral topics.
The fact that the School expressly determined before hand that this was not an open forum, which it was in its rights to do, was enough to allow them to controll the content of the speeches.
Posted by: Chilidog | November 21, 2009 2:19 PM
the easiest way to solve this issue is to pass a law limiting all graduation speeches to this text.
It will be boring as hell, but no one will sue.
Posted by: Chilidog | November 21, 2009 2:23 PM
Suppose instead she had used all her time to pitch Amway products.
I would have agreed to cut off her microphone. The assembled people were not there to hear such crap.
I'd say the same if she made a speech supporting the Klan.
The point of requiring previous approval is to avoid wasting people's time on somebody who choses to go rogue. (No apologies to Sadass Palin.)
If she wants to preach to people in a public park, fine. People are free to stay, or leave. Or make fun of her. But to hijack a captive audience, no.
Posted by: 6EQUJ5 | November 21, 2009 3:05 PM
I could see how nobody has a right not to be offended. But how does this apply to a government function where you are required to attend?
Posted by: Owen | November 21, 2009 3:06 PM
Normally valedictorian speeches are boring as hell. I appreciate any student who wants to use that time to say anything offensive, controversial, or otherwise interesting that he/she wants.
Posted by: Gretchen | November 21, 2009 3:07 PM
Chilidog, we don't agree, and I'm pretty sure I'm right. You seem to be looking for neutrality somewhere, but that isn't the issue. The school and the state are not allowed to take sides, but students are welcome to do so; I for one encourage it regardless of whether I agree with the sentiment or not (in this case, I most vociferously disagree. I'm anti-sky-fairy myself.
Furthermore, it is not the school's microphone, stage, air, ceremony; they are not private actors. It's the society's; the school is the custodian in loco parentis both of student's safety and their rights. Commencement is, or might as well be, compulsory; still irrelevant. There's something to be said (legally) for speech that is preplanned or impromptu, but it is still free unless there's a compelling reason otherwise. Schools can only abridge fourth amendment rights if there's a pressing reason; same with first.
Apegod has Hazelwood in the wrong place--it only concerns curricular speech, and is a precedent for prior review of publications and has little effect elsewhere. Frederick v. Morse's fractured reasoning is not helpful for much precedent but seems to hinge on drug use, and is an extension of Bethel. In fact, the big confusion in Morse was whether it was religious; it's obvious from the opinions that the justices would have been inclined to support it if the banner had been overtly religious instead of just stupid. The rabbi is a fine example of establishment, because as an adult participant in a commencement exercise he's clearly not a student. Of course, if we find a new, fundamental difference between the state (the school, its staff, administration, etc.) and the citizen (students), then you have a better case. But I've seen firsthand an administration's efforts to rope speakers in to a quasi-administrative role in commencement speeches, and that's the reason why, and it's not good enough.
Regardless of how insipid or annoying to other faiths, the speech is protected. Nobody has any right anywhere to an environment free of annoyance, especially when the annoyance is core speech and not disruptive or obscene. The citizen is determining the message, period. Would a lot of people get foamy if the kid were a muslim or a jew? Imagine an atheist! Don't care. If you want the lectern yourself, earn it and speak your mind. That's both the law and the optimum situation for the society in general.
Ice9
Posted by: ice9 | November 21, 2009 3:30 PM
How is the student different in this case than in Santa Fe?
Posted by: Owen | November 21, 2009 4:17 PM
First of all, Santa Fe was about prayer--regardless of who led or sanctioned it, it was worship, an active process in which all the students present participated or felt coerced. THe commencement speech is a speech, an expression of opinion. I suppose that if she'd said "let us pray" or "pray with me" or something like that we'd get closer, but she's making a persuasive case for religion, urging people to consider her perspective. The students in the audience--and they were distinctly different, set apart as an audience, though I don't know if that matters to the courts--were never urged to participate.
Second, in Santa Fe the town had a written policy permitting this activity, and the school and the coaches and staff seemed actively to sanction and support the prayer. Again, I don't know what particular behavior would constitute a bright line limit here, and I doubt the supremes know, but it seems that if the school (as it should) stands apart neutral and permits speech without offering support or reaction, watching for disruption or danger, then they're doing what the current precedents suggest (at least as I see them in the most hopeful light.)
Your point is a very good one, by the way. I agree that it's a tough one, and my interpretation is as much hopeful about how it will go as it is arguing how it is. I'm not happy about the religiosity of many schools and the way schools treat minority religions or especially the non-religious, but the best possible thing in a high school, in my view, is an aggressively neutral and disinterested staff that protects students' safety but doesn't numb out the odd and sharp and contrary perspectives that make our society great. That means that the school should be a place where kids learn the essential skill of enduring, even appreciating, different perspectives even when--especially when--those perspectives piss them off.
Ice
Posted by: ice9 | November 21, 2009 4:36 PM
Chilidog wrote:
This is absolutely false. The school is the government; it has no rights, it has authorities. And the bill of rights quite obviously sets limits on how it applies that authority. The fact that they own the microphone is absolutely irrelevant. Religious groups rent public facilities all the time to hold rallies, protests and even religious services; the fact that the government owns the facilities does not mean the government can tell them what they can and can't say (which I know is not analogous to this case; the point is that ownership of facilities simply is not relevant to the question of when the government can censor speech).
A distinction without a difference. Do we really want the government deciding where the dividing line is between "talking about how faith has impacted her life" and "proselytizing"? There is no difference. And she didn't say they had to follow her example, she said they should follow her example (since she can't force anyone to do anything, this should be obvious). When someone says "X is very important to my life and is responsible for my success" -- whether X is faith in God, hard work, getting lots of sleep or whatever else -- they are quite obviously advocating that the listener give it a try as well.
Let's try this hypothetical. What if a valedictorian had said that the key to her success was meditation, that it helped keep her focused and disciplined and they should all give it a try? A Christian in the audience might well be offended by that because they view meditation as a Buddhist religious exercise. Do they also have a right not to be offended because they're part of a captive audience, or does this apply only to the expression of Christian ideas to non-Christians?
Posted by: Ed Brayton | November 21, 2009 4:50 PM
I would argue, regardless of the content of the speech, that the address by the valedictorian is seen by most people as an official part of the graduation. I realize this isn't the case, that it is a private speaker addressing the audience, etc., but I would contend that this view held by most of those who would be in attendance for such a speech is the key issue that gives the government (in this case the school) the duty to confirm the content of that speech.
I tend to look at it as being similar to a guest speaker coming in for an anti-drug speech, motivational speech, etc. If a guest speaker comes in and, while making legitimate contextual statements happens to mention faith, a benign reference to God, etc., that would be quite different from a guest speaker coming in and making overt proselytizing statements, preaching fire and brimstone, etc. The school would, in that case, be considered by most to be responsible for the content of these speeches, much like the guest speakers who made racist comments a few years ago, etc.
In this case, regardless of the correctness of this view, the school is generally seen as sponsoring the speech in question. Because of this view it is logical, again likely you could argue a duty, for the school to know the content of the speech. Once they do that, as has been pointed out, it becomes government sanctioned.
The schools are, in a sense, screwed in these cases. If they don't preview the speech before hand they run the risk of an offensive speech that leads to potential lawsuits as members of the audience blame the school for the content (remember, even if they win it can cost them hundreds of thousands of dollars). If they do preview the speech they can face lawsuits by people who feel their free speech rights are being trampled.
Posted by: dogmeatib | November 21, 2009 5:27 PM
"A Christian in the audience might well be offended by that because they view mediation as a Buddhist religious exercise."
Meditation isn't automatically "Buddhist-centric" (i.e., not all people who meditate are Buddhists), so unless your hypothetical speaker specifically proselytizing for Buddhism in the context of shilling for meditation (which would parallel what Ms. McComb did in her valedictorian speech with regards to Christianity), the analogy falls flat.
Posted by: daniel rotter | November 21, 2009 5:39 PM
dogmeat: Is your argument really that the government gets to censor because most people are relatively ignorant abut Constitutional law? I thought that was the Bush administration argument for torture.
Posted by: kehrsam | November 21, 2009 5:46 PM
No, and that comparison is rather a stretch, wouldn't you say?
I am saying that the speech is a much more gray area than is being portrayed here. It is seen by some to be school sponsored speech, and there are actually good reasons why this is so. As an educator I sit through graduations every year. The normal process is, regardless of the district I've been in...
1) Board president or superintendent gives a speech
2) Principal gives a speech
3) Valedictorian gives a speech
4) Diplomas are handed out
5) Usually Principal congratulates everyone, lots of cheers, etc.
In most cases this ceremony includes the national anthem, often times a pledge (2 out of the 3 districts included this). Sometimes the school song, which IMO is one of the most pathetic lame things I've seen in a long time...
In this process the lines are blurred for most observers. On top of that the school and its administration face the potential for a very embarrassing situation if any part of it goes wrong.
This isn't someone on talk radio, this isn't someone standing on the street corner, this isn't someone blogging. To say "let them say what they want," ignores reality. Would you support a valedictorian who gave a speech that made racist and homophobic statements? There are definitely parts of the country where belief in racial superiority and inferiority are alive and well. What if the speaker insists that their religious beliefs teach them that "niggers are inferior" and "God hates fags?"
Would you support their free speech as well? Would you donate money for the defense fund that the school would require to defend itself from (understandably) insulted and furious families? Frankly, I doubt it.
I maintain my argument that this is a far more gray issue than most of the free speech advocates are willing to admit.
Posted by: dogmeatib | November 21, 2009 6:06 PM
Racist or homophobic remarks in the speech would be censorable under different precedents. The level of offense, or fighting words, or actionable verbal assault in a high school is much lower than on the street. Still core political speech (minus disturbance-causing, obscene, alcohol or drug or weapon related non-curricular speech) is still protected regardless of the audience's perception.
In any event the aggrieved party is the student who is being censored, not the audience. From the audience perspective, there's an establishment issue; from the speaker's perspective, there's a free speech issue. If the speaker is an individual exercising individual speech, it isn't establishment regardless of the audience's perceptions of sponsorship. And a lawsuit on those grounds--that the audience was subjected to religious speech it disapproves, for one, or speech that the audience believes is impermissibly religious in that forum, for two--that lawsuit would be thin at best. They might have a greater grounds to challenge the practice in future or demand their own forum for their own views. That option is open to them, of course; all they have to do is earn the right to speak, or speak in an alternative forum, such as the steps of the hall (I have witnessed that, by the way--a sermon preached in the mezzanine after the ceremony to the half-dozen graduates who attended a particular church, their families, and a few passersby. It was ostentatiously religious and blasted the "secular" ceremony just concluded. Perfectly legal.)
ice
Posted by: ice9 | November 21, 2009 6:34 PM
Poking around I found this example where the student was allowed to continue. She was probably a hero among her family and church.
"I want to tell you that Jesus Christ can give you eternal life in heaven," Spaulding said before the crowd. "If we die with that sin on our souls, we will immediately be pulled down to hell to pay the eternal price for our sins ourselves."
http://www.news4jax.com/news/13401043/detail.html
I've always considered the valedictorian to be representing the school and the excellence of the graduating class. It would seem that the school would has some say in the tone of the speech.
Posted by: Owen | November 21, 2009 6:43 PM
Dang, a lost opportunity to boo her off the stage.
I don't see this as a matter of free speech though; the school has its own image to uphold and understandably wants to approve of speeches at graduation and reserve the right to not allow deviations from the script. The student is an idiot for lying in hopes of being able to bore everyone with her jesus talk. Still, I wish the school had let her go on and be booed. :)
Posted by: MadScientist | November 21, 2009 6:47 PM
kersham: "Spectacularly backwards. There is no right to not be offended by the speech of others."
Ahem. My point had nothing to do with being offended. It was about being essentially held prisoner and forced to endure religious proselytizing, with tacit government approval.
The government can't coerce you to be religious. But it also can't provide a forum for others to do it.
If you're at a government-organized and government-funded and government-housed function, the speaker has no right to proselytize you. But also, the government MUST step in and protect you if they do. Otherwise, the government is complicit in religious proselytizing.
In this incident, it's even the case that there was no other option (you only get one grad ceremony), so the kids couldn't just walk out and enjoy some sort of 'separate but equal' ceremony in some place where there was no preaching.
They had ONE choice, this ceremony, and the school acted rightly in refusing to participate in religious proselytizing.
Respectfully, Ed and many of the commenters here haven't thought this one through.
Posted by: Hank Fox | November 21, 2009 7:42 PM
dogmeat wrote:
But that's not how such tests operate. The courts often apply a "reasonable observer" test, including in the area of endorsement of religion, and that person is presumed to know all the relevant facts. We don't base the law on the perceptions of an ignorant observer. Even if that was an issue, it is easily solved by issuing a disclaimer that says the speaker was chosen by virtue of being valedictorian and her speech reflects her own opinions, not the opinion of the administration.
Posted by: Ed Brayton | November 21, 2009 8:20 PM
Hank Fox wrote:
This simply isn't true, as the example I gave above (which no one has even acknowledged) shows - and specifically to school children. School attendance is compulsory, but if an entire class has an assignment to give oral reports on some historical figure, or on someone who has influenced their life, or on their favorite book, and they choose to talk about Jesus or the Bible, the fact that the other students have to go to that class does not mean the school can force the student to talk about a different figure or a different book. By the same token, someone else could just as easily choose to talk about Richard Dawkins, or some atheist book, and the fact that there are Christians in the class who might be bothered by that does not mean the government can tell them not to do so. That is the whole point of a free society - other people are able to advocate ideas that bother you. The only real distinction that matters is whether the speech is endorsed by the government or is private speech; whether it occurs in a government setting is not relevant because private speech can and does get spoken in a government setting all the time.
Posted by: Ed Brayton | November 21, 2009 8:25 PM
"...and they choose to talk about Jesus or the Bible, the fact that the other students have to go to that class does not mean the school can force the student to talk about a different figure or a different book."
They certainly can if they find out that the student who is doing the oral report on Jesus or the Bible is planning to engage in the same kind of proselytization in their presentation as McComb was doing in her valedictorian speech.
Posted by: daniel rotter | November 21, 2009 9:08 PM
Problem is ice9, and this is the point I keep trying to make, this is far more gray than Ed would like to admit. If I were the valedictorian and in my speech I included Bible verses that, according to my religious beliefs, proved that whites were superior and minorities should be maintained as slaves, women should be maintained as second class citizens, and gays should be stoned to death, how can you legitimately argue that censorship of those statements is acceptable, but proselytizing is protected free speech?
----------
I realize that Ed, problem is that this doesn't change the fact that schools are motivated to approve the speech beforehand by the fear. I'm not saying that they are right or wrong, only that there are very legitimate reasons why administrations will do this that don't involve intentional suppression of free speech. Then, once they have reviewed the speech they have effectively made it government endorsed which changes the whole situation.
Posted by: dogmeatib | November 21, 2009 9:28 PM
Ed: "The government cannot censor for viewpoint or content."
This is not precisely true, since in 2007 the Court ruled against "Bong hits 4 Jesus" for its pro-drug viewpoint (allowing school authorities to outlaw it). If the sign was anti-drug, the ruling would surely have gone the other way.
Though the valedictorian clearly speaks as an individual, if it offends people, the school still would catch hell, putting the school in a first amendment bind. That's why many schools have now abandoned allowing the valedictorian to speak at graduation, instead carefully selecting the speakers.
Posted by: Imback | November 21, 2009 9:29 PM
Ed, I still disagree. The point is the proselytizing. Not just talking about the subject of religion, but talking religiously. Selling it. Attempting to convince others to believe.
Writing a report about the historical figure of Jesus (whom I doubt existed, but that's a separate matter) is nowhere near the same as what this girl planned to say.
This is CHURCH, brought to a school setting. For the school to sit back and smile and allow her to go on that way would make the school complicit in pushing religion.
Further, I think the girl probably knew exactly what she was doing. This wasn't some bland statement of opinion, it was an attempt to bring others to Christ. I wouldn't be too surprised if a lawsuit wasn't part of the plan from the beginning, and I WOULD be surprised if she didn't get church donations to pursue the case to the Supreme Court.
In a bigger picture than the one point of whether or not this is protected speech, I think we can be pretty sure the churchy types saw this as a chance to open the door to more religion in schools.
For this reason, and the one earlier argued, I'm not unhappy things turned out the way they did.
Ed, I think I understand your point, but in every larger way I view that point, it turns schools into Christian catechism in a really short time. Believer-aggressors, encouraged and organized and even funded by churches, would hound the other students ceaselessly.
You think that once this gate is opened that ANY grad ceremony, ANY school event, would be non-sectarian? I grew up in Texas and Alabama, and I don't. (Here's an old blog post of mine that somewhat relates: Invasion of the Buddy Snatchers.)
I say again: The government can't push religion on you. But it also can't sit back, in a government setting, and allow others to do it for them.
Posted by: Hank Fox | November 21, 2009 9:57 PM
Imback wrote:
Yes, the Supreme Court carved out a very specific exception for advocating something against the law. But that exception is very narrow and specific, not nearly as broad as:
The Court did not say that schools could censor anything that might offend people; it said that they could censor advocacy of something illegal. It simply isn't the same thing.
Posted by: Ed Brayton | November 21, 2009 9:58 PM
Hank Fox wrote:
There is no such distinction. The very act of saying "Jesus is a huge part of my life and without my faith I would not have achieved everything I have" is an attempt to convince others to believe the same thing. The same thing is true of saying that meditation was important to one's success. Telling someone that being disciplined was important to your success is an attempt to convince them to be disciplined. There is no other purpose for saying such a thing except to endorse that thing as a good thing for others to try as well.
Posted by: Ed Brayton | November 21, 2009 10:03 PM
I'm not a lawyer, but I can see a very clear difference between these things. Advocating for meditation or discipline, though they might be temporarily annoying to individuals, are not a threat in the way that religion is.
We don't have separation of discipline and state, or separation of meditation and state. But we do have separation of church and state, for good, solid reasons that far predate any of us here.
Nowhere does that separation reach the ideal I envision, but I'm willing to live and let live. We're no more going to get rid of pesky religion than we are of mosquitoes.
HOWEVER ... free speech or not, I could never be in favor of letting the other kids bring mosquitoes to school, so they could express themselves freely.
I still think you haven't thought this through.
Meditation and discipline don't have aggressive trillion-dollar organizations behind them (maybe I'm exaggerating here, but if you count all the churches, all their donations and property, yeah, I can see it), nor do they affect your ability to think rationally.
I still think the school, and the court, did the right thing. There are a million corners out there where this nice young lady can pitch her religion, from dawn til dusk and beyond. She has not been hurt in any real way, nor has freedom of speech.
Posted by: Hank Fox | November 21, 2009 10:30 PM
I didn't mean that. I meant they're in a first amendment bind in that they cannot legally stop a valedictorian from offending people. So several schools in my area have stopped inviting valedictorians to speak. I also agree with Ed that this case that was denied cert seems a clear violation.
Posted by: Imback | November 21, 2009 10:40 PM
Gretchen @32: "I appreciate the student who wants to use that time to say anything offensive..."
How can you "appreciate" something and find it "offensive" at the same time?
Posted by: daniel rotter | November 22, 2009 4:43 AM
I agree with Gretchen @ 32:
It's also interesting to kind of test the thinking of valedictorians vs. the efforts of the school and parents to educate its students (realizing this minute sample is not representative of anything, but it can be illuminating). I want to hear what they think, especially if it's provocative.
I've heard atheist speeches at a red state school along with it's 'all about Jesus' speeches as well (which are actually the most popular type of speech - those students almost never go on to top-rate schools either - what a waste).
I even heard a speech from a particularly gifted out-atheist (very rare in this area) who promoted smoking pot. One year we got the afore-mentioned atheist, one Jesus-freak speech, and one speech that had me wanting to leap to my feet yelling 'Heil Hitler!' given there were co-valedictorians. In fact, every graduation event I've attended had co-valedictorians and therefore multiple speeches and points of view. Nobody got hurt by it and if there were complaints the school ignored them.
I'm as extreme a separationist as pretty much anyone, arguing that noting God on our coins, 'under God' in the Pledge, and government-coerced prayers are all unconstitutional and horrible policy contra to our best ideals; however, these young people also have broad 'freedom of conscience' rights. They've earned the right to broadcast what they think and we should want to hear the products of our schools really think.
Graduation is a perfect example of a public square that tests our government's ability to administrate our rights while respecting its limited powers. I'd argue we should go beyond merely wanting to hear what these students think; I'd argue it's imperative we get their perspective as local citizens supporting and testing our public schools.
Posted by: Michael Heath | November 22, 2009 7:26 AM
And I'd argue that religion is a special case of an organized, well-funded and brainlessly aggressive force that has to be guarded against.
Posted by: Hank Fox | November 22, 2009 8:17 AM
So presumably those of you who think the school was right in this, would also say it would be wrong for a valedictorian to get up and attribute their success to rational thinking untainted by the poison of religion. That magical thinking stands in the way of a rational and reasonable approach to understanding the world and ultimately academic success.
I can see it - why the hell would we deign to allow a student who has busted ass and come out as top of their class actually give the speech they see fit? Ice9 is way off here - I would hope that he is not in a position to "help" another valedictorian write their commencement speech - he obviously should really be basically writing it for them, as that would totally be the best way to control what they are going to say.
Or maybe, just maybe, we could just accept that this student worked their ass off and earned the right to speak their mind - accepting only the very least of topic restrictions.
Posted by: DuWayne | November 22, 2009 8:57 AM
Rational thinking doesn't have a huge and powerful interest block behind it. And it's not a known danger, with thousands of years of demonstrable harm attributable to it.
And though it doesn't look like it at this moment in our history, it didn't have an entire nation created at least partly to perform the experiment of living without it.
I would argue that the people attached to the idea that freedom of speech is the more important issue here have lived in a safe zone, rich and fat as we all are in the west, so that they can no longer imagine the real danger that religion poses.
In the real world, everything has a cost. Wearing a life jacket while out boating is an ugly, chafing annoyance. But for the eventuality of those rare extreme situations, it’s NECESSARY.
Yes, this is censorship. But it's very mild censorship, a small price to pay for retaining the necessary firewall between religion and schools.
Posted by: Hank Fox | November 22, 2009 11:45 AM
" ... the experiment of living without it."
Living without it being mandatory, I meant. But also, if you like, living without it at all.
Posted by: Hank Fox | November 22, 2009 11:53 AM
Hank Fox - As a committed secularist, I am absolutely harmed when my government administrates a prayer and am convinced that infliction of harm on me is unconstitutional. The government has no power to treat me unequally on matters for religion. You sir appear to be arguing that the establishment clause should be so broadly interpreted that students have both their individual speech and conscience rights violated. Merely so the people in the audience don't have to hear speech they may disagree with coming not from the government, but instead from a couple minute speech by a fellow citizen who distinguished themselves and earned a right to speak.
How is that liberty and free speech in the public square?
I find your argument actually mutates the establishment limitations into an encroachment of government power against individual citizens merely to avoid having to hear speech some may not like. This appears to me to be a similar argument to the Islamic Blasphemy laws being worked at the U.N.
Posted by: Michael Heath | November 22, 2009 12:03 PM
I would argue that this isn't quite a legitimate comparison. Valedictorians are free to make benign statements of omage to their beliefs, whether Christian or Jew, Atheist, Muslim, Hindu, etc., but for an atheist to stand up and make a long drawn out statement that their (lack of)belief is the only correct path to success, etc., that would be just as unacceptable. IE, the first half of your example is legitimate, rational thinking, reason, etc., but to then go on and argue that others are wrong, deluded, etc. would be just as questionable to me.
Posted by: dogmeatib | November 22, 2009 12:39 PM
I would argue that the people attached to the idea that freedom of speech is the more important issue here have lived in a safe zone, rich and fat as we all are in the west, so that they can no longer imagine the real danger that religion poses.
You don't know me Hank, so I can forgive your abysmal fucking ignorance about my experience with religion. Suffice to say, I am nearly the last person who would begin to argue against the danger that religion presents us. If you would like clarification, click my name over to my blog and click on the religion tag (scroll down to the bottom of my sidebar for tags).
The issue is not, as you seem to think it is, about my desire to see religion flouted about in schools. I would love to see the day when kids would be horrified by the notion of someone speaking favorably of their faith, whether through a class presentation assignment or a commencement speech. The issue is that if you are going to ban all student mention of religion in schools, then you are banning all of it. Including speech that speaks against it.
Yes, this is censorship. But it's very mild censorship, a small price to pay for retaining the necessary firewall between religion and schools.
No sir, it is absolutely not a mild censorship. What you are suggesting is disallowing any and all discussion of religion from schools. Either that, or only allowing discussion of religion in schools, that the state approves of. If the latter, let me smack you upside the head with a clue-stick - if we let the state decide what discussion of religion should be approved, it would not be speech against religion.
State agents should absolutely not provide their own opinions about certain topics in schools - religion and politics are to be left alone. This does not mean that such discussions are unacceptable - I would argue that schools are a very good forum for having vigorous discussions about these sorts of ideas (in appropriate classes of course), moderated in an unbiased manner by the teacher. What you are suggesting however, would eliminate such discussions altogether.
As Michael Heath mentioned above, you aren't arguing in favor of the establishment clause, you are arguing against it. And if you really think that is a reasonable idea, I would just like to point out that if that came to a head right now, secularists are unlikely to come out on top...
Posted by: DuWayne | November 22, 2009 12:40 PM
Oookay. Well, now that my Abysmal Fucking Ignorance is out in the open, I think I'm outta here.
On a happier note: I Just Haven't Met You Yet.
Posted by: Hank Fox | November 22, 2009 1:22 PM
@Hank Fox
That video is the bet argument for censorship you've made yet. In fact posting that link may be a violation of the UN Convention Against Torture. [shiver]
Posted by: Abby Normal | November 22, 2009 1:51 PM
Oookay. Well, now that my Abysmal Fucking Ignorance is out in the open, I think I'm outta here.
Works for me, given your penchant for making ignorant assumptions about the basis for the positions of others. Could be that at some point you will have a substantive and non-presumptuous comments to make. Until that day, I for one won't miss you.
Posted by: DuWayne | November 22, 2009 2:29 PM
I was a valedictorian. My high school got around this problem by being Catholic. My speech was quite religious, and it was censored in the sense that I wasn't allowed to say everything I wanted to say about my HS experience. I have no idea how much it would have bored my classmates, but it was definitely full of me calling out myself and my school on all the ways I thought we'd failed at Christianity. I'm not really mad either; half the stuff that got censored was stuff I could not have forgiven myself later for speaking in the unqualified way it was written. In fact I actually wound up with three speeches: 1st draft fluff, 2nd draft written after I got really depressed, and 3rd draft awesome combination of the two. And the important stuff from the 2nd made it into the 3rd.
Relevance? Very little if any, considering it was a private school. So why post this? I'm egotistical, and I also thought it might inject a little lightheartedness into the conversation.
Posted by: KKairos | November 23, 2009 3:04 AM
Ed:
Does it make a difference to your analysis if the offending words had come from:
a) the school principal
b) an invited speaker whom the school might have expected to give such a speech
c) the valedictorian
d) the dunce of the class, whom the particular school has a tradition of inviting to speak at the graduation ceremony (just to deal with the wholly irrelevant "she busted her ass off to get the right to speak, so let her say what she likes" argument floating around here)
I'd be interested to know.
Posted by: Robin Levett | November 23, 2009 7:29 AM
The school talked to her beforehand, and she agreed to certain constraints on her speech at that time. She did not protest or take her issues with the decision to anyone higher up, instead she broke the contract on stage. I'd be a little more sympathetic if she'd made it a drawn-out fight over free speech, but instead she broke the agreement with the school in a cowardly and unprincipled way that indicates even she knows she was in the wrong.
Posted by: seiya kino | November 23, 2009 8:33 AM
My knowledge of this subject is limited to what I read on here but I'm bored right now so I'm going to have a stab at Robin's question based on that. Bear in mind that while I broadly agree with Ed on the principles involved my own experience in an English comprehensive leads me think that religious speech in schools has a lot less effect on students than you would think from how it is discussed on American sites.
Presumably paid to be there and represent the school, probably comes under 'the government' which Ed says isn't allowed to give religious speeches.
May depend on how they were invited, if the school specifically invited the local Rabbi because he is a Rabbi it would likely come under government speech. If they put the names of parents in a hat and happen to pull out one who is very religious they are more likely to get the same analysis as this student.
These are essentially the same for Ed's analysis, both are graduating students who would be there anyway and in both cases the speaker was chosen for a reason that had nothing to do with what they might say.
Posted by: Matty | November 23, 2009 8:46 AM
While I find the content of the proposed speech bilious, I agree that she should be allowed to make an ass of herself (and be treated to hoots and catcalls by her fellow students). At the same time, I agree with seiya kino that she is not the victim of foul play; she made a concious decision to enter into a bad faith agreement so she could dispense her "good news".
KKairos:
I got around the restrictions by not being the valedictorian, actually I think I had the distinction of having the highest raw IQ and the lowest GPA, concurrently, in my graduation class.
Posted by: democommie | November 23, 2009 8:51 AM
I still remember the prayer a misguided classmate made at my own graduation. Despite being asked to keep it non-sectarian, she mentioned Jesus several times. I was appalled, and embarrassed that my Jewish parents had to sit through that. I'm glad they turned this one's mike off and glad the decision stands as is.
Posted by: jon | November 23, 2009 2:05 PM
And so what if she decided to give a speech about the proper way to give blow jobs? Would the school have had to allow that? Or what if she went on a curse filled tirade about what a bunch of horrible people that her classmates were?
Posted by: Tom | November 23, 2009 5:03 PM
I hope this comment does not fall on a cold post. Whether the issue is under the free speech or religion clauses, the educational setting has been the difference. If this speech was made outside of the school there is little doubt that it would be protected. There is also little doubt that this speech could have occurred at the school after-hours w/o violating the religious clauses. The point is, the Court is likely to uphold this action b/c it was a school official's rational decision.
Ice 9 makes a good point that Hazelwood deals with curricular speech and Morse is fractured but the point of grouping them together is not for their results but just to show the incredible amount of deference the Court is willing to provide school officials. The Court has been unwilling to second guess an official's decision if it determines it was rational.
In principle, I agree that more speech is better speech, particularly if schools are meant to provide an education. I am just less hopeful the Court will ever feel the same way.
Posted by: Apegod | November 24, 2009 9:00 AM