Lawsuit in Colorado Graduation Case

Strong case, yes. But this comment in the press release is gratuitously nasty:

"This is yet another example of a politically correct culture silencing Christians in order to not offend those of other beliefs," said John W. Whitehead, president of The Rutherford Institute.

I will wager that the attorneys who offered the bum advice to the school board are Christian, and it is likely that at least 60% of the school board and 70% of the administrators in the district are church-going Christians. So it's not a question of a "politically correct culture" silencing Christians.

This misunderstanding of the issue by the Rutherford Institute makes the case interesting -- they could misunderstand enough that they screw up the lawsuit and lose.

Pity.

From what I have heard of the incident, it seems to me that the school board was in the right, at least legally. The girl did not read the pre-approved speech, so the microphone was cut off. If she had submitted the speech she did read, it obviously would not have been approved, and the whole situation would have been avoided. The valedictorian broke the rules by reading a separate speech. But that's just my take on it.

The question in the court case will be whether they had any right to censor her statements at all, especially on the basis of religious content. And on that question, they're on shaky ground.

Actually, she attended a school in Henderson, Nevada. There is some other graduation speaker in Colorado with a similar experience, though. The Liberty Counsel people are defending him.

I agree that the school may be on shakey ground, but I heard some of speech on the news, sure sounded like preaching to me. Anyway she knew she was deliberately going against her agreement with the school to carry out what she preceived as, and assuredly had been taught, her mission for God.

I, for one would not wish to be subjected to preaching, however sincere, at a publiclly funded event.

I can find no mention of this incedent on the ACLU site, so I'm not sure of their involvement.

Ed,

I guess what I'm not seeing is why the school board doesn't have the right to censor her. It's a school-related/sponsored function. The valedictorian is given a platform to speak by the school board, provided his or her speech is previously approved. If any other speech is used, regardless of whether it promotes religion, criticizes the school board or faculty, or contains an inordinate amount of profanity, I think the school board would be justified in cutting the mike.

The big question I think is whether she submitted for approval the speech she actually read and whether it was rejected on the basis of its religious content.

Yes, it is the school board's forum. And, yes, they did request a copy of the speech in advance. But...that is ridiculous. If they are afraid of what students have to say, they should not let students speak. As long as what she had to say did not create a danger and was not disruptive, they have no business censoring the speech. It may have been preachy, that is of no concern. There is no undue entanglement issue because it is clear that the Board did not endorse the speech.

I am curious as to what damages are being sought here. Is it just an injunction that the Board will not be censor-happy in the future, or is the girl claiming actual harm?

wheatdogg is correct, of course, that I was confusing two different cases. This is the Nevada case, not the Colorado case. As for the rest of the comments...Red Mann writes:

I, for one would not wish to be subjected to preaching, however sincere, at a publiclly funded event.

Understandably so, but of course what we wish or not wish to be subjected to is not a legal standard for what is constitutional or not. As I explained in a previous post on this same story, the school's argument that it had to censor the speech to avoid an establishment clause violation is not only false, it is only made minimally plausible by the fact that they did choose to censor the speech. The student was chosen to speak on the basis of an objective criteria (being valedictorian), not because (as was done at my high school) the administration liked her proposed speech best. As any student would likely do in such a speech, the student wanted to express appreciation for the people who had helped her reach that goal, and in her opinion, God was a big part of it. For the administration to say that it's okay for a student to thank, or discuss the influence of, any non-religious figure in her life but not a religious figure is to engage in viewpoint discrimination. The student is speaking, not the school, and whether it's a publicly funded event or not is pretty much irrelevant to the legal question in the case. In fact, in situations where the government provides a forum such as this, the precedents strongly are on the side against viewpoint discrimination.

I can find no mention of this incedent on the ACLU site, so I'm not sure of their involvement.

There is no official involvement, but an ACLU official in Nevada told the newspaper there that the school had to do what they did to avoid an establishment clause violation. That official was off the mark considerably.

Pablo wrote:

I guess what I'm not seeing is why the school board doesn't have the right to censor her. It's a school-related/sponsored function. The valedictorian is given a platform to speak by the school board, provided his or her speech is previously approved. If any other speech is used, regardless of whether it promotes religion, criticizes the school board or faculty, or contains an inordinate amount of profanity, I think the school board would be justified in cutting the mike.

There are some types of speech that the school board could legally censor, but not on the basis of the viewpoint being expressed (the courts have generally upheld bans on profanity, for example, but not censorship of religious viewpoint). Remember, the key fact here is that the student's speech represented her own views, not that of the school or the government. The student could have gone on all day long about the influences on her life and cited teachers, parents, philosophers, and so forth. It was only when she talked about the importance of her faith in her life and in helping her reach the goals that afforded her the chance to speak that the school objected. That means the school is, in essence, saying that we will give you this time due to your achievements to address the gathering and talk about all of these influences and important things in your life that helped you get there - but not if religion is mentioned. That is government censorship of religious speech, when an identical non-religious statement would be allowed but that one is not. That's the viewpoint discrimination problem. Banning profanity, for example, does not trigger that problem because it is content-neutral.

kehrsam wrote:

I am curious as to what damages are being sought here. Is it just an injunction that the Board will not be censor-happy in the future, or is the girl claiming actual harm?

No complaint has actually been filed yet, but it's very rare in such cases to ask for anything but nominal damages (and that's typically only so that the case cannot be mooted by a reversal of the policy by the school). I'm sure they will be asking for a declaratory judgement, reserving the right to ask for injunctive relief if the action is repeated in the future.

But what if the valedictorian delivers a sermon? Most people would agree that hiring a preist to give mass at graduation is inappropriate. But what if a student does it? A principal can't lead the graduating class in a prayer, but they can hand off a mike an have a student do it?

I agree though: on this case, I really don't think there is any obvious answer on where to draw the line. That's why I can't get particularly outraged at any of the "sides" but i DO become outraged at the ridiculous rhetoric being thrown around.

plunge-

If the school selected a student for that purpose, there would be an establishment clause violation. But in this case, the speaker was chosen without regard to the content of her speech and on objective criteria. That mitigates the establishment clause problem.

Ed,

"But in this case, the speaker was chosen without regard to the content of her speech and on objective criteria."

That there is an approval process changes things significantly. The implication behind an approval process is that there is some criteria that the speech's content must meet and without which would cause the approval committee to deny the selected student from speaking at commencement. That alone creates the appearance of school-sponsorship, but is furthered by the fact that the ceremony is otherwise entirely school-run.

Furthermore, this may turn out to be more of a contract issue. While the student was selected based on content-irrelevant grounds, she likely had to agree that she would present the approved speech (even if it was a rubber-stamped process) at commencement. If that was the case (and that's a pretty small if), then the school can claim that the action was based on a breach of contract rather than a content-based censorship.

I wish there was a way to edit comments; rereading earlier comments I've realized that much of what I've had to say is redundant.

Still, I think the approval process is more important here than the cutting of the mic. If the student played bait-and-switch with the school, don't they had every right to pull the mic as soon as that became clear?

I won't comment on the legality of these incidents, but I will say that I am appalled at how some supposedly open-minded students take such opportunities to proslytize and preach. Our school (admittedly, a college) chaplain has inserted a disclaimer in his benedictions and closing comments at our graduation ceremonies (added 'or moment of silence' when asking people to join in prayer), yet one of this year's student speakers launched into a tirade of gibberish about his 'creator' and God this and that. It was really quite embarrassing, and wholly inappropruiate for a college graduation ceremony.

Michael LoPrete | June 26, 2006 12:01 AM

I pretty much agree with this, and will add one thing. If the student disagreed with the edits, she could have taken the issue of the edits to court before she was to give her speech. The fact that she didn't more than suggests that she had agreed to them. And, if, as I suspect, her right to give an address at the graduation ceremonies was founded on her acquiescence to the lawfull edits that were agreed to between her and the school administration--and if, as I also suspect, that was true of anyone who was permitted to speak at graduation ceremonies at the school--then she effectively waived her right to subsequently complain.

Ed: it isn't an issue of her having been censored. She had not been censored. She would be permitted to give the speech that she wanted to give on the public square, or on virtually any street corner in town. If she and the school administration did not agree to the edits at a publicly--i.e., government--sponsored ceremony, she should have refused to give the speech. It really is as simple as that.

The ACLU cites LASSONDE v. PLEASANTON, 2003. They should be familiar with it because they made the school district eat shit with it. When CCSD wanted to allow something akin to benign neglect wrt prayers, the ACLU took out Lassonde and beat them about the head and shoulders with it in 2003.

Go to the 9th District Court of Appeals archive site and search on "Lassonde". That will produce the PDF of the ruling.

Note the points that have come up in these discussions: that we do not have the right "not to be offended" -- this is not what the court decided -- Second, allowing the speech would have had an impermissibly coercive effect on dissenters, requiring them to participate in a religious practice even by their silence. Cole, 228 F.3d at 1104; see also Lee, 505 U.S. at 593.

Also, this applies:

First, Cole implicitly foreclosed the argument. Cole held that the school's restriction was "necessary" to avoid running afoul of the Establishment Clause. 228 F.3d at 1101.
We did not hold that, in censoring the speech, the school had done more than what was required; rather, we held that the steps taken were "necessary." In other words, if the school had not censored the speech, the result would have been a violation of the Establishment Clause.

[10] Second, Cole's implicit holding is correct. Even if a disclaimer were given, and even if it could dissolve governmental "entanglement" sufficiently, a disclaimer could not address the other ground underlying both Cole and Lee: permitting a proselytizing speech at a public school's graduation ceremony would amount to coerced participation in a religious practice. Regardless of any offered disclaimer, a reasonable dissenter still could feel that there is no choice but to participate in the proselytizing in order to attend high school graduation. Although a disclaimer arguably distances school officials from "sponsoring" the speech, it does not change the fact that proselytizing amounts to a religious practice that the school district may not coerce other students to participate in, even while looking the other way.[my emphasis]

I believe I said as much last week; despite a lack of intestinal fortitude on my part, I am a captive audience to a religious event sponsored by the graduation.

Given the previous precedent and full reading of this opinion, I don't see how the school district violated the student's rights.

However, the Supreme Court and the lower courts are stuffed chock-full o' religious and conservative fundies at this point so that libertarian and religious views may in fact be intersecting once again. They may be overturned based on the direction of the prevailing winds. I don't blame the Republicans for this just like you cannot blame a rabid dog for being rabid, but I do blame the Democrats for allowing the courts to be stuffed with the likes of Roberts and Alito.

Oh, yeah -- one more thing. In the 2003 Lassonde case, defendent appealed to the supreme court but was refused. Do you think that the involvement of the Rutherford Institute means that the current Supreme Court is more amenable to hearing the case?

I think it does because I'm sure that the boys and girls over at the Rutherford Institute read Lassonde and since the case is very similar and nothing else other than the makeup of the courts is different, it's another attempt to appeal an opinion that they didn't like the last time.

Brittany was on Today Show, Hannity (twice), and Joe Scarborough once (so far). If this ain't the moralistic culture warriors dragging out a constitutional free speech issue that plays into their hands, I don't know what is.

I support the ACLU fully on this.

Michael Loprete wrote:

That there is an approval process changes things significantly. The implication behind an approval process is that there is some criteria that the speech's content must meet and without which would cause the approval committee to deny the selected student from speaking at commencement. That alone creates the appearance of school-sponsorship, but is furthered by the fact that the ceremony is otherwise entirely school-run.

I think you have the argument exactly backwards. In fact, I know that the court will see it the opposite way. The situation would be different if the approval process were based on the content of the speech. If, as at my high school, they chose the speaker based on submitted speeches, then the school would be directly responsible for the content of the speech. Then one could plausibly argue that an objective observer could view the content of that speech as being government endorsed and you would have an establishment clause problem. But in this case, there is no approval process - the invitation to speak at the graduation goes automatically to the valedictorian of the class. The opportunity to address the class and talk about their life, their influences, their hope for the future, and so forth, is given automatically as the result of objective criteria. The speech, therefore, is not endorsed by the school and an objective observer would recognize that what is said in the speech represents the views of the student, not the school. And that makes all the difference in the world. It cancels out any establishment clause violation and takes away the primary excuse for censoring the speech. Without that, all you're left with is the question of whether the school can invite a student to speak based on objective criteria and then not allow them to speak about religion when they would allow them to speak about any other non-religious influence on their life.

Furthermore, this may turn out to be more of a contract issue. While the student was selected based on content-irrelevant grounds, she likely had to agree that she would present the approved speech (even if it was a rubber-stamped process) at commencement. If that was the case (and that's a pretty small if), then the school can claim that the action was based on a breach of contract rather than a content-based censorship.

The issue in the courtroom is not going to be the cutting off of the mic so much as the previous attempt to censor her. It will be whether the school's policy of telling students what they can and can't say religiously in that situation is constitutional or not.

raj wrote:

Ed: it isn't an issue of her having been censored. She had not been censored. She would be permitted to give the speech that she wanted to give on the public square, or on virtually any street corner in town. If she and the school administration did not agree to the edits at a publicly--i.e., government--sponsored ceremony, she should have refused to give the speech. It really is as simple as that.

I think the courts will view this situation as a limited public forum, specifically because the process of choosing the speaker is based on objective, non-content-based criteria.

Ted-

That is a very interesting precedent that I was not aware of, thanks for pointing me to it. I'll point out a couple things about it. First, while the facts are almost identical, you'll notice that the crux of the case is a distinction between "references to God as they related to Plaintiff's own beliefs" - which the court said were permissable - and "proselytizing comments", which were not permissable. Given that, and given that this case is also in the 9th district, at the trial and appeals level the central issue will be the specific statements in both her proposed speech and the one she gave, and whether they fall into category 1 or 2. I've not seen the speech, so I can't comment on that.

Second, bear in mind that the 9th circuit has long taken a hard line on church/state cases, harder than the Supreme Court has taken. Especially given the new makeup of the court, it would not be surprising to see the case taken on by the high court and possibly overturned because that distinction is a false one. I think the plaintiffs have a strong case in overturning Lassonde because, frankly, I think it's difficult to maintain the argument the court made. Let me explain why.

The court took the position that there is a distinction between talking about one's own religious beliefs and proselytizing (that is, encouraging others to believe the same thing), and they further argued that proselytization was, in and of itself, a "religious exercise". The problem with this is that the school would almost certainly allow any number of non-religious, or even quasi-religious, statements that are substantially the same. For instance, if the valedictorian said that one of the keys to their success is the martial arts, and spoke of the influence of their teachers, and encouraged the audience to study the martial arts because the discipline it instilled in him was indispensible in achieving good grades, would there be any objection? Likely not. Let's take a quasi-religious example:

"The most important factor in my success has been my ability to meditate. Sometimes we just get so busy with school and extra-curricular activities and family stuff that the world seems to be spinning out of control. At times like that, meditation has allowed me to refocus my energies and attack the huge pile of work to be done with a sense of calm and peacefulness. If you've never tried to meditate, I urge you to pick up a book on it and give it a try. It can relieve your stress and allow you to achieve more than you ever thought you could."

Is that proselytizing? It's equivalent to it in every relevant way, but it almost certainly would not be objected to and only because it's not overtly religious. I think the argument that proselytization is a "religious exercise" is difficult to defend. Proselytization only means "trying to convince someone else that we're right." We do that every day, about non-religious ideas as well. I also think the distinction between discussing religion in one's own life and proselytization is difficult to define. The very act of saying "God has had a huge influence on me" is implicitly saying "....and he should be a huge influence on you too."

I'll make one further argument: the very fact that the government, under the Lassonde standard and under the rules of this particular school district in the current case, is in the position of deciding which statements are merely "references to God as they relate to plaintiff's beliefs" and which are "proselytizing comments" might well trigger the excessive entanglement prong of the Lemon test. All of these are solid arguments that will undoubtedly be made in court. Will they win? It likely depends on the specific facts of the case that I don't have access to at this point. But I think they're compelling arguments, not to be dismissed lightly. This is not an open and shut case.

Oh, yeah -- one more thing. In the 2003 Lassonde case, defendent appealed to the supreme court but was refused. Do you think that the involvement of the Rutherford Institute means that the current Supreme Court is more amenable to hearing the case?

I don't think that makes any difference either way. Why the court takes a case one time and not another is a total mystery.

Well Ed, I understand your logic -- my intent was to point out that court precedent was there for cases very similar to the untrained eye and that other, more educated people seemed to see things my way, at least in the past. America changes and I wouldn't be happy to see Cole and Lissonde overturned, but it may. I think overturning will grease some very slippery skids, but I think we have way too much free time on our hands (including my own) and some "interesting" times may be good for us.

I happened to catch Brittany's interview on the Today show and noted a few things:

1. She was well aware of what she agreed to and that she violated that agreement.

2. Her dad and mom knew beforehand of the agreement (and encouraged her to deviate from her agreement).

3. Her dad indicated that the lawyers associated with his businesses would look into pursuing the case further.

4. Today briefly showed a correspondence between the CCSD and Brittany (or her lawyers) prior to the speech where sections were circled and identified as sectarian, specific to one religion and proselytizing. Also they pointed court precedent in the correspondence authorizing them to review the content although I didn't get if it was to Lessonde, Cole or something else altogether - it was pretty brief.

5. Mom(?) indicated that they were uncertain if the school was bluffing on their position of pulling the speech if it deviated. The implication was that they wanted to test it.

So prior to going into this, sweet Brittany and her kinfolk were fully aware of the issue and decided to (at least in equal parts) to challenge the CCSD on behalf of fundies everywhere as to have her free-speech religious say.

Additionally, I am very satisfied that the courts find that a captive audience exists where I am drawn to a secular event -- graduation -- and am then coerced to sit through a proselytizing session (the part about Jesus dying an excruciating death to overcome my shortcomings).

Ed, do you think that the part about a student standing at the podium, telling me that "Jesus dying an excruciating death for my shortcomings" is proselytizing? I think it is; if it appeared on the obverse of currency, I'd be pretty upset. But maybe it's just me.

It seems to me a perverse joke that this event took place in a casino in Las Vegas. I look for humor everywhere.

Ted wrote:

Additionally, I am very satisfied that the courts find that a captive audience exists where I am drawn to a secular event -- graduation -- and am then coerced to sit through a proselytizing session (the part about Jesus dying an excruciating death to overcome my shortcomings).

The problem, as I said above, is that the distinction between "proselytizing" and speaking about one's religious beliefs is mostly illusory. The other problem is that the government would treat proselytizing for non-religious beliefs entirely differently.

Ed, do you think that the part about a student standing at the podium, telling me that "Jesus dying an excruciating death for my shortcomings" is proselytizing? I think it is; if it appeared on the obverse of currency, I'd be pretty upset. But maybe it's just me.

Again, I think the question of what is and isn't proselytizing is far too vague to make a meaningful standard here. The statement "God was a big part of my success" is also proselytizing, even if not so explicitly.

It seems to me a perverse joke that this event took place in a casino in Las Vegas. I look for humor everywhere.

LOL. Yes, that is funny. If Jesus had been there, he might well have thrown the moneychangers out.

Isn't a lie for her to give the school a copy of a speech she didn't intend to deliver? Doesn't her belief system place a prohibition on lying? Regardless of the legal ramifications, didn't she violate the very faith she professes in order to give the graduation speech? I feel the same way about creationist and ID supporters who are willing to subvert belief to advance their own agenda. If they are so willing to advance their own arguments that they would violate the tenets of their faith, what does that say about that faith in general? This casual willingness to cast aside your convictions when convenient had a profound effect and drove me to examine my own faith.

The School Board apparently believes that any mention of faith and religion must be rooted out of the graduation ceremony, presumably on the advice of their lawyers. At least this is what we may conclude from the fact that multiple drafts of the speech were prepared and critiqued.

First, as Ed has pointed out, this is not correct: As long as her religious viewpoint was not the selection criterion for getting the opportunity to speak, there is no undue entanglement or endorsement issue.

Second, the legal issue at trial will not be cutting the mic, but the prior restraint, where the Board essentially said she could say anything she wanted, except for the one thing she wanted to say.

That is why in this case, I don't think ReBoho is on point. She did not enter into a contract with the Board, because every one of her proposals was shot down without the Board offering anything in its place. Where there is no meeting of the minds on an agreement, there can be no breach of the agreement.

The "captive audience" argument fails for a similar reason: No one, other than her parents, was there for the purpose of gleaning pearls of wisdom from an 18-year old, even if she is valedictorian. In other words, there are any number of speeches, awards, and general time wasting at such a ceremony for which I would prefer I not be captive to; since the time-wasting is not being religious in nature, I get no veto. So what is the rationale for the religious veto?

I would take the argument farther and say that Lemon essentially has it backwards. The test should simply be this: Is public money going to a religious purpose. If so, it is impermissable. End of story.

But speech should be fully allowed. No more worries about whether Santa "secularizes" the creche sufficiently, all that is required is a neutral approach that any religion can use the public square equally.

Lemon is slowly disappearing anyway. Wouldn't a rational rule in its place be nice?

Ed Brayton | June 26, 2006 09:54 AM

This comment is not responsive to my comment, but I'll merely point out that

because the process of choosing the speaker is based on objective, non-content-based criteria

is somewhat presumptuous. The speaker might have been initially prompted based on "objective, non-content-based criteria," but obviously the final selection was not based on "objective, non-content-based criteria," otherwise the school administration would not have demanded that the speech be vetted beforehand. If she had refused to the edits demanded by the school administration, and if she did not take the issue up with the courts, the school adminitration presumably would have selected someone else to give a speech.

I've been blogging on this issue on my own site some, and managed to locate the original text of McComb's speech. It's here: http://www.computernewbie.info/wheatdogg/?p=165

I have also tried to get some explanation from McComb herself, but haven't gotten any response yet. I would like to know, too, if she told the school one thing and then did another. She's been parroting the "war on Christianity" claptrap, which I told her was just not true in her case.

Anyway, for me, her speech veered off the path of acceptability when she made specific reference to God so loving the world that he allowed his son to die on the cross, and invoking John 10:10 (incorrectly, AFAIC) to show that Christ's death enables us to live. The rest of the speech was more generally about God's love and the petty nature of our own needs and desires, which made no specific reference to Christianity.

The pointedly Christian segment of her talk sounded like someone witnessing her faith at an altar call, or a preacher delivering a sermon. It was not appropriate for a public school setting, even if the audience were almost exclusively Christian. Some Christians (myself included) don't entirely buy the whole "Jesus died for my sins" dogma, so I for one would have pretty offended by McComb's address.

I may be overly cynical, but it seems as if our dear girl has been groomed and prepped by adults with an agenda. In her wide-eyed naivete, she is playing the part of an attractive, innocent mouthpiece. No doubt she believes most of what she says about the "censorship" -- I don't doubt the sincerity of her faith -- but I suspect she has not spent a lot of time really thinking it through. Her peeps visiting MySpace just gush over her "bravery" and her 15-minutes-of-fame media appearances. For her part, she is just soaking it up.

Meanwhile, here in the great Commonwealth of Kentucky, a girl essentially forced the Shelby County SD to eliminate Christian prayer from graduation and other end-of-year ceremonies. She had maybe 1 second of fame -- no appearances on Today or Hannity & Colmes and nearly no blogosphere attention.

Originally, I supported McComb's defiance of the school. Now, the more I learn about the whole event, the less sympathetic I am toward her and her "cause." It just reeks of media manipulation.

I think you may very well be right that this was a calculated attempt to get media attention and that she was deliberately dishonest to make that happen. But that really doesn't have any effect on the legal issues in the case or my analysis of it (any more than the fact that the arrest in Lawrence was arranged on purpose in order to challenge the law changes the legal validity of that ruling).