MEMORANDUM ON

STUDENT RELIGIOUS SPEECH

AT ATHLETIC EVENTS

The Foundation for Moral Law

One Dexter Avenue
Montgomery, AL 36104
(334) 262-1245

Let your light so shine before men, that they may see your good works,
and glorify your Father which is in heaven. Matthew 5:16

As in every autumn, Alabamians are caught up in the enthusiasm of the football

season. The competing teams, the cheerleaders, the band, the halftime performances, the
crisp autumn evenings it all comes together as a cherished and exciting tradition.

But in some Alabama schools, one part of that tradition is missing this yearthe
opening prayer.

Several school districts have received letters from a Wisconsin-based group known as
the Freedom from Religion Foundation (FFRF), an atheist organization whose goal is
to drive religious expression out of the public arena. And right now, football stadiums
seem to be the focus of their attack.

The FFRF insists that prayers at public school football games violate the First
Amendment to the U.S. Constitution, which, they claim, mandates separation of church
and state but actually reads as follows:

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

The Establishment Clause does not mandate complete separation of religion from
government nor does it prohibit the public acknowledgement of God. But does the
Establishment Clause prohibit prayer at football games? Lets examine it more closely.

I. Analysis of Court Decisions Concerning Prayer at Athletic Events

The meaning of the First Amendment is of crucial importance. Those who settled the
original thirteen colonies did not cross the Atlantic to get away from prayer at football
games. In 1853 the U.S. Senate Judiciary Committee conducted an exhaustive study of
the Establishment Clause and concluded that it referred to the connection with the state
of a particular religious society, by its endowment, at the public expense, in exclusion of,
or in preference to, any other, by giving to its members exclusive political rights, and by
compelling the attendance of those who rejected its communion upon its worship, or
religious observances. Nonetheless, by preventing the government from sponsoring one
church to the detriment of all others, the Founders did not wish to see us an irreligious
people.

They did not intend to prohibit a just expression of religious devotion

by the legislators of the nation, even in their public character as
legislators; they did not intend to send our armies and navies forth to
do battle for their country without any national recognition of that
God on whom success or failure depends; they did not intend to
spread over all the public authorities and the whole public action of
the nation the dead and revolting spectacle of atheistical apathy. Not
so had the battles of the revolution been fought, and the deliberations of
the revolutionary Congress conducted. On the contrary, all had been done
with a continual appeal to the Supreme Ruler of the world, and an habitual
reliance upon His protection of the righteous cause which they
commended to His care.

The Reports of Committees of the Senate of the United States for the Second Session of
the Thirty-Second Congress, 1852-53, pp. 1-4. Senate Rep. No. 32-376 (1853).
(Emphasis added).

Many who support public prayer today also do not consider such prayer to be a mere
ritual or ceremony. Rather, they believe that prayer changes things. Just as prayer for
our troops helps ensure success and safety in battle, so prayer for athletes helps ensure
that they will play their best, practice good sportsmanship, and be free from injury.

Unlike the FFRF, the Foundation for Moral Law believes that student-initiated prayer
at football games does not violate the Establishment Clause and is protected by the Free
Exercise Clause and the Free Speech Clause of the First Amendment and by the Alabama
Religious Freedom Amendment. The complete ban on prayer demanded by the FFRF
would, in the Senate Committees words, spread over all the public authorities and the
whole public action of the nation the dead and revolting spectacle of atheistical apathy.

Contrary to the FFRFs one-sided and simplistic analysis, the Supreme Courts
decision in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), did not
invalidate student-initiated prayer at athletic events. Rather, the Court focused on the
extensive state involvement in the prayers. First, the schools (an intermediate school and
a junior high school) held an election, run by school officials, to determine whether a
prayer would take place at that years games. If the students voted to have prayer (as they
did), the school officials would conduct another election to select a student to lead the

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prayers. Because the elections were conducted by school officials acting in their official
capacities, the Court majority concluded that there was too much state involvement in the
student election system and, further, that the student election system insured that only
majoritarian views would be expressed.

The Court distinguished between government-sponsored prayers and student-initiated

religious speech, noting that there is a crucial difference between government speech
endorsing religion, which the Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses protect. Id. at 302 (citation
omitted). Where the message is the students and not the schools, the Establishment
Clause has less application, and the Free Exercise and Free Speech clauses control. A
school-district policy which permitted a student message at the opening of a football
game without prescribing the content of that message would be wholly constitutional. A
recent well-reasoned appellate case from Texas upheld the practice of allowing football
cheerleaders to paint messages on run-through banners, some of which contained Bible
verses, on the ground that the message was that of the students, not the school. Kountze
Independent School District v. Matthews, No. 09-13-251 (Tex. App. Sept. 28, 2017).1

The FFRFs references to other Supreme Court decisions are equally simplistic and
overbroad. Lee v. Weisman, 505 U.S. 577 (1992), did not invalidate all graduation
prayers, only a specific situation in which a superintendent asked a rabbi to lead a prayer
and gave him written guidelines as to what the prayer should include. Justice Souter,
joined by two other Justices, stated in a concurring opinion: If the State had chosen its
graduation day speakers according to wholly secular criteria, and if one of those speakers
(not a state actor) had individually chosen to deliver a religious message, it would have
been harder to attribute an endorsement of religion to the State. 2 Id. at 630 n.8. Even
Engel v. Vitale, 370 U.S. 421 (1962), which held that the state could not compose an
official prayer to be recited in every classroom, did not ban student-initiated prayer.

After the Santa Fe decision, the United States Court of Appeals for the Eleventh
Circuit (which includes Alabama) considered two cases involving religious speech in a
public school setting. In both cases, the Eleventh Circuit held that the religious speech did

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Schools may prohibit students from engaging in vulgar and lewd speech or advocating illegal
activity without converting the student speech into the schools message. Bethel School Dist. No.
403 v. Fraser, 478 U.S. 675, 683 (1986); Morse v. Frederick, 551 U.S. 393, 397 (2007).
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Justice Scalia, joined by three other Justices, identified a solution to the problem: All that is
seemingly needed is an announcement, or perhaps a written insertion at the beginning of the
graduation program, to the effect that, while all are asked to rise for the invocation and
benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so.
That obvious fact recited, the graduates and their parents may proceed to thank God, as
Americans have always done, for the blessings He has generously bestowed on them and on their
country. 505 U.S. at 645 (Scalia, J., dissenting).

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not violate the First Amendment. In Adler v. Duval County School Board, 250 F.3d 1330
(11th Cir. 2001), the Court held that a school board policy that permitted but did not
require a student speaker to lead a prayer over the loudspeaker at graduation exercises did
not violate the First Amendment. And in Chandler v. Siegelman, 230 F.3d 1313 (11th
Cir. 2000), the Eleventh Circuit stated:

Permitting students to speak religiously signifies neither state approval nor

disapproval of that speech. The speech is not the States either by
attribution or by adoption. The permission signifies no more than that the
State acknowledges its constitutional duty to tolerate religious expression.
Only in this way is true neutrality achieved.

Id. at 1317 (citation omitted). A complete prohibition of student religious speech at

school events, as the FFRF desires, would violate the Free Exercise and Free Speech
Clauses. The Establishment Clause does not require the elimination of private speech
endorsing religion in public places. Id. at 1316.

II. Principles to Be Derived from These Cases

As we examine what the Court has said concerning prayer at athletic activities and
other public school events, we may deduce the following general principles:

1. The Establishment Clause (Congress shall make no law respecting an

establishment of religion) may limit school involvement in religious activity. 3

2. However, the Free Exercise Clause (or prohibiting the free exercise thereof) and
the Free Speech Clause (or abridging the freedom of speech) afford protection to
students rights to engage in prayer and other religious speech.

3. The school may not compel or endorse prayer or excessively involve itself in the
process of determining whether to have prayer, who should lead the prayer, and
what the content of prayer should be.

4. Prayer will be permitted if it is student-initiated and student-led.

5. Student speech at an athletic activity is more likely to be upheld as constitutional if

the students are given an opportunity to speak on a subject of their choice (which
could include religious expression) instead of the school designating that speech as
a prayer.

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See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45 (2004) (Thomas, J., concurring)
(questioning application of the Establishment Clause, a federalism provision, to the states).

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 6. The school policy should include a disclaimer to the effect that statements made
during this period represent the views of the speakers alone and not the official
position of the school or its personnel, and that although all are requested to be
silent and respectful during this period, no one will be assumed because of that
silence and respect to have joined in or agreed with the speech.

III. What Other Schools Have Done

In an effort to preserve student prayer at athletic events in a way that does not violate
the First Amendment as the courts have interpreted it, school districts have engaged in a
variety of practices:

In one district, instead of an opening prayer, the game announcer informed the
audience that they would pause for a moment of silence. During that moment of
silence, without any prompting or direction from school officials, students and
other spectators arose and said the Lords Prayer.

In other districts, students or spectators have brought bullhorns so they could pray
without using the schools public address system.

In others, a student has been selected on neutral criteria (either by the

administration or by the student body) to present opening remarks, which could
include prayer.4 The selection is made from a pool of students who have
volunteered to present the opening remarks.

In still others, the team (or those team members who choose to do so) gather for
prayer before the game, either in the locker room or on the field. If the team
members lead this prayer and the coach joins, that will probably be acceptable. If
the coach initiates or leads the prayer, that could be more problematic.

In sum, students may brightly shine the light of faith during school events.

IV. Sample Policy

A sample policy that allows for pre-game student messages, religious or otherwise as
the student may choose, is set out below for your consideration and adaptation. Compare
Adler v. Duval County School Bd., 851 F. Supp. 446, 449 (M.D. Fla. 1994) (policy on
graduation messages).

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If the selection is at random, it is possible that the selected student could give an anti-religious
message or an occultic or Satanic prayer. This is less likely if the students make the selection
through student government rather than school officials drawing names at random. Schools must
weigh that possibility against the drastic action of abolishing pre-game student speech altogether.

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 Sample Athletic Event Student Message Policy

A pre-game message, not to exceed two minutes, may be given at high

school athletic events over the schools public address system by a student
volunteer selected at random or on religion-neutral criteria from those who
express a wish to deliver such a message.

The content of the message shall be prepared by the student volunteer,

shall not be monitored or otherwise reviewed by the School Board, its
officers or employees, and is not an official expression of the school.

The purpose of this policy is to allow students who wish to give a pre-
game message at athletic events the opportunity to do so without
monitoring or review by school officials.

Team members who wish to meditate or pray before a game either

individually or with other members of the team or the opposite team, may
do so either in the locker room or on the athletic field, provided that the
meditation or prayer is student-initiated and student-led and provided
further that no team member shall be pressured or coerced to participate in
the meditation or prayer.

CONCLUSION

The Foundation for Moral Law presents this memorandum in a sincere effort to
protect student pre-game speech, religious or otherwise, in a manner consistent with the
United States Constitution and the Alabama Constitution as interpreted by the courts.

Nothing herein shall constitute the practice of law. Readers are encouraged to seek
competent legal advice before taking action on these matters. School officials are
encouraged to share this memorandum with their attorneys.

The Foundations attorneys, who have studied and practiced constitutional law for
many years, would be pleased to be of assistance to you and your school district. Please
feel free to call us at (334) 262-1245.