Text File

(Slip Opinion) OCTOBER TERM, 1999 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, INDIVIDUALLY AND AS NEXT FRIEND FOR HER MINOR CHILDREN, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 9962. Argued March 29, 2000- Decided June 19, 2000 Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer over the public address system before each home varsity football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a suit challeng- ing this practice and others under the Establishment Clause of the First Amendment. While the suit was pending, petitioner school dis- trict (District) adopted a different policy, which authorizes two stu- dent elections, the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to de- liver them. After the students held elections authorizing such pray- ers and selecting a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit held that, even as modified by the District Court, the football prayer policy was invalid. Held: The District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. Pp. 9 26.(a) The Court's analysis is guided by the principles endorsed in Lee v. Weisman, 505 U. S. 577. There, in concluding that a prayer deliv- ered by a rabbi at a graduation ceremony violated the Establishment Clause, the Court held that, at a minimum, the Constitution guaran- tees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so, id., at 587. The Dis- trict argues unpersuasively that these principles are inapplicable be-

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cause the policy's messages are private student speech, not public speech. The delivery of a message such as the invocation here- on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer- is not properly characterized as "private" speech. Although the District relies heav- ily on this Court's cases addressing public forums, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, it is clear that the District's pregame ceremony is not the type of forum discussed in such cases. The District simply does not evince an intent to open its ceremony to indiscriminate use by the student body generally, see, e.g., Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270, but, rather, allows only one student, the same student for the entire sea- son, to give the invocation, which is subject to particular regulations that confine the content and topic of the student's message. The ma- joritarian process implemented by the District guarantees, by defini- tion, that minority candidates will never prevail and that their views will be effectively silenced. See Board of Regents of Univ. of Wis. Sys- tem v. Southworth, 529 U. S. ___, ___. Moreover, the District has failed to divorce itself from the invocations' religious content. The policy involves both perceived and actual endorsement of religion, see Lee, 505 U. S., at 590, declaring that the student elections take place because the District "has chosen to permit" student-delivered invoca- tions, that the invocation "shall" be conducted "by the high school student council" "[u]pon advice and direction of the high school prin- cipal," and that it must be consistent with the policy's goals, which include "solemniz[ing] the event." A religious message is the most obvious method of solemnizing an event. Indeed, the only type of message expressly endorsed in the policy is an "invocation," a term which primarily describes an appeal for divine assistance and, as used in the past at Santa Fe High School, has always entailed a fo- cused religious message. A conclusion that the message is not "pri- vate speech" is also established by factors beyond the policy's text, in- cluding the official setting in which the invocation is delivered, see, e.g., Wallace, 472 U. S., at 73, 76, by the policy's sham secular pur- poses, see id., at 75, and by its history, which indicates that the Dis- trict intended to preserve its long-sanctioned practice of prayer before football games, see Lee, 505 U. S., at 596. Pp. 918. (b) The Court rejects the District's argument that its policy is dis- tinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. The first part of this argument- that there is no impermissible government coer- cion because the pregame messages are the product of student

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choices- fails for the reasons discussed above explaining why the mechanism of the dual elections and student speaker do not turn public speech into private speech. The issue resolved in the first elec- tion was whether a student would deliver prayer at varsity football games, and the controversy in this case demonstrates that the stu- dents' views are not unanimous on that issue. One of the Establish- ment Clause's purposes is to remove debate over this kind of issue from governmental supervision or control. See Lee, 505 U. S., at 589. Although the ultimate choice of student speaker is attributable to the students, the District's decision to hold the constitutionally problem- atic election is clearly a choice attributable to the State, id., at 587. The second part of the District's argument- that there is no coercion here because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary- is unpersuasive. For some stu- dents, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit. The District's argument also minimizes the immense social pressure, or truly genuine desire, felt by many students to be involved in the extracurricular event that is American high school football. Id., at 593. The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual. See id., at 596. Pp. 1821. (c) The Court also rejects the District's argument that respondents' facial challenge to the policy necessarily must fail because it is pre- mature: No invocation has as yet been delivered under the policy. This argument assumes that the Court is concerned only with the se- rious constitutional injury that occurs when a student is forced to participate in an act of religious worship because she chooses to at- tend a school event. But the Constitution also requires that the Court keep in mind the myriad, subtle ways in which Establishment Clause values can be eroded, Lynch v. Donnelly, 465 U. S. 668, 694, and guard against other different, yet equally important, constitu- tional injuries. One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion. See, e.g., Bowen v. Kendrick, 487 U. S. 589, 602; Lemon v. Kurtzman, 403 U. S. 602, 612. As discussed above, the policy's text and the circumstances surrounding its enactment reveal that it has such a purpose. Another constitutional violation warranting the Court's attention is the District's implementation of an electoral pro- cess that subjects the issue of prayer to a majoritarian vote. Through its election scheme, the District has established a governmental mechanism that turns the school into a forum for religious debate and empowers the student body majority to subject students of mi-

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nority views to constitutionally improper messages. The award of that power alone is not acceptable. Cf. Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. ___. For the foregoing reasons, the policy is invalid on its face. Pp. 2126. 168 F. 3d 806, affirmed.

STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.

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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES _________________

No. 9962 _________________

SANTA FE INDEPENDENT SCHOOL DISTRICT, PETITIONER v. JANE DOE, INDIVIDUALLY AND AS NEXT FRIEND FOR HER MINOR CHILDREN, JANE AND JOHN DOE, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 19, 2000]

JUSTICE STEVENS delivered the opinion of the Court. Prior to 1995, the Santa Fe High School student who occupied the school's elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season. This practice, along with others, was challenged in Di s- trict Court as a violation of the Establishment Clause of the First Amendment. While these proceedings were pending in the District Court, the school district adopted a different policy that permits, but does not require, prayer initiated and led by a student at all home games. The District Court entered an order modifying that policy to permit only nonsectarian, nonproselytizing prayer. The Court of Appeals held that, even as modified by the Di s- trict Court, the football prayer policy was invalid. We granted the school district's petition for certiorari to re- view that holding.

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I The Santa Fe Independent School District (District) is a political subdivision of the State of Texas, responsible for the education of more than 4,000 students in a small community in the southern part of the State. The District includes the Santa Fe High School, two primary schools, an intermediate school and the junior high school. R e- spondents are two sets of current or former students and their respective mothers. One family is Mormon and the other is Catholic. The District Court permitted respon- dents (Does) to litigate anonymously to protect them from intimidation or harassment.1 Respondents commenced this action in April 1995 and moved for a temporary restraining order to prevent the District from violating the Establishment Clause at the imminent graduation exercises. In their complaint the Does alleged that the District had engaged in several - - - - - - 1 A decision, the Fifth Circuit Court of Appeals noted, that many Di s- trict officials "apparently neither agreed with nor particularly r e- spected." 168 F. 3d 806, 809, n. 1 (CA5 1999). About a month after the complaint was filed, the District Court entered an order that provided, in part: "[A]ny further attempt on the part of District or school administration, officials, counsellors, teachers, employees or servants of the School District, parents, students or anyone else, overtly or covertly to ferret out the identities of the Plaintiffs in this cause, by means of bogus petitions, questionnaires, individual interrogation, or downright `snooping', will cease immediately. ANYONE TAKING ANY ACTION ON SCHOOL PROPERTY, DURING SCHOOL HOURS, OR WITH SCHOOL RESOURCES OR APPROVAL FOR PURPOSES OF ATTEMPTING TO ELICIT THE NAMES OR IDENTITIES OF THE PLAINTIFFS IN THIS CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESE INDIVIDUALS, WILL FACE THE HARSHEST POSSIBLE CONTEMPT SANCTIONS FROM THIS COURT, AND MAY ADDITIONALLY FACE CRIMINAL LIABILITY. The Court wants these proceedings addressed on their merits, and not on the basis of intimidation or harassment of the participants on either side." App. 3435.

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proselytizing practices, such as promoting attendance at a Baptist revival meeting, encouraging membership in religious clubs, chastising children who held minority religious beliefs, and distributing Gideon Bibles on school premises. They also alleged that the District allowed students to read Christian invocations and benedictions from the stage at graduation ceremonies,2 and to deliver overtly Christian prayers over the public address system at home football games. On May 10, 1995, the District Court entered an interim order addressing a number of different issues. 3 With respect to the impending graduation, the order provided - - - - - - 2 At the 1994 graduation ceremony the senior class president deli v- ered this invocation: "Please bow your heads. "Dear heavenly Father, thank you for allowing us to gather here safely tonight. We thank you for the wonderful year you have allowed us to spend together as students of Santa Fe. We thank you for our teachers who have devoted many hours to each of us. Thank you, Lord, for our parents and may each one receive the special blessing. We pray also for a blessing and guidance as each student moves forward in the future. Lord, bless this ceremony and give us all a safe journey home. In Jesus' name we pray." Id., at 19. 3 For example, it prohibited school officials from endorsing or partic i- pating in the baccalaureate ceremony sponsored by the Santa Fe Ministerial Alliance, and ordered the District to establish policies to deal with "manifest First Amendment infractions of teachers, counsellors, or other District or school officials or personnel, such as ridiculing, bera t- ing or holding up for inappropriate scrutiny or examination the beliefs of any individual students. Similarly, the School District will establish or clarify existing procedures for excluding overt or covert sectarian and proselytizing religious teaching, such as the use of blatantly denomin a- tional religious terms in spelling lessons, denominational religious songs and poems in English or choir classes, denominational religious stories and parables in grammar lessons and the like, while at the same time allowing for frank and open discussion of moral, religious, and societal views and beliefs, which are non-denominational and non- judgmental." Id., at 34.

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that "non-denominational prayer" consisting of "an invoc a- tion and/or benediction" could be presented by a senior student or students selected by members of the graduating class. The text of the prayer was to be determined by the students, without scrutiny or preapproval by school off i- cials. References to particular religious figures "such as Mohammed, Jesus, Buddha, or the like" would be permi t- ted "as long as the general thrust of the prayer is non- proselytizing." App. 32. In response to that portion of the order, the District adopted a series of policies over several months dealing with prayer at school functions. The policies enacted in May and July for graduation ceremonies provided the format for the August and October policies for football games. The May policy provided: " `The board has chosen to permit the graduating se n- ior class, with the advice and counsel of the senior class principal or designee, to elect by secret ballot to choose whether an invocation and benediction shall be part of the graduation exercise. If so chosen the class shall elect by secret ballot, from a list of student vo l- unteers, students to deliver nonsectarian, nonprosel y- tizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies.' " 168 F. 3d 806, 811 (CA5 1999) (emphasis deleted). The parties stipulated that after this policy was adopted, "the senior class held an election to determine whether to have an invocation and benediction at the commencement [and that the] class voted, by secret ballot, to include prayer at the high school graduation." App. 52. In a second vote the class elected two seniors to deliver the invocation and benediction.4 - - - - - - 4 The student giving the invocation thanked the Lord for keeping the class safe through 12 years of school and for gracing their lives with

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In July, the District enacted another policy eliminating the requirement that invocations and benedictions be "nonsectarian and nonproselytising," but also providing that if the District were to be enjoined from enforcing that policy, the May policy would automatically become effective. The August policy, which was titled "Prayer at Football Games," was similar to the July policy for graduations. It also authorized two student elections, the first to dete r- mine whether "invocations" should be delivered, and the second to select the spokesperson to deliver them. Like the July policy, it contained two parts, an initial statement that omitted any requirement that the content of the invocation be "nonsectarian and nonproselytising," and a fallback provision that automatically added that limit a- tion if the preferred policy should be enjoined. On August 31, 1995, according to the parties' stipulation, "the di s- trict's high school students voted to determine whether a student would deliver prayer at varsity football games. . . . The students chose to allow a student to say a prayer at football games." Id., at 65. A week later, in a separate election, they selected a student "to deliver the prayer at varsity football games." Id., at 66. The final policy (October policy) is essentially the same as the August policy, though it omits the word "prayer" from its title, and refers to "messages" and "statements" as well as "invocations."5 It is the validity of that policy that - - - - - - two special people and closed: "Lord, we ask that You keep Your hand upon us during this ceremony and to help us keep You in our hearts through the rest of our lives. In God's name we pray. Amen." Id., at 53. The student benediction was similar in content and closed: "Lord, we ask for Your protection as we depart to our next destination and watch over us as we go our separate ways. Grant each of us a safe trip and keep us secure throughout the night. In Your name we pray. Amen." Id., at 54. 5 Despite these changes, the school did not conduct another election,

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is before us.6 The District Court did enter an order precluding en- forcement of the first, open-ended policy. Relying on our decision in Lee v. Weisman, 505 U. S. 577 (1992), it held - - - - - - under the October policy, to supersede the results of the August policy election. 6 It provides: "STUDENT ACTIVITIES: "PRE-GAME CEREMONIES AT FOOTBALL GAMES "The board has chosen to permit students to deliver a brief invocation and/or message to be delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition. "Upon advice and direction of the high school principal, each spring, the high school student council shall conduct an election, by the high school student body, by secret ballot, to determine whether such a statement or invocation will be a part of the pre-game ceremonies and if so, shall elect a student, from a list of student volunteers, to deliver the stat e- ment or invocation. The student volunteer who is selected by his or her classmates may decide what message and/or invocation to deliver, consistent with the goals and purposes of this policy. "If the District is enjoined by a court order from the enforcement of this policy, then and only then will the following policy automatically become the applicable policy of the school di strict. "The board has chosen to permit students to deliver a brief invocation and/or message to be delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition. "Upon advice and direction of the high school principal, each spring, the high school student council shall conduct an election, by the high school student body, by secret ballot, to determine whether such a message or invocation will be a part of the pre-game ceremonies and if so, shall elect a student, from a list of student volunteers, to deliver the stat e- ment or invocation. The student volunteer who is selected by his or her classmates may decide what statement or invocation to deliver, consi s- tent with the goals and purposes of this policy. Any message and/or invocation delivered by a student must be nonsectarian and nonpros e- lytizing." Id., at 104105.

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that the school's "action must not `coerce anyone to sup- port or participate in' a religious exercise." App. to Pet. for Cert. E7. Applying that test, it concluded that the gradua- tion prayers appealed "to distinctively Christian beliefs,"7 and that delivering a prayer "over the school's public address system prior to each football and baseball game coerces student participation in religious events."8 Both parties appealed, the District contending that the enjoined portion of the October policy was permissible and the Does contending that both alternatives violated the Establis h- ment Clause. The Court of Appeals majority agreed with the Does. The decision of the Court of Appeals followed Fifth Circuit precedent that had announced two rules. In Jones v. Clear Creek Independent School Dist., 977 F. 2d 963 (1992), that court held that student-led prayer that was approved by a vote of the students and was nonsectarian and nonproselytizing was permissible at high school graduation ceremonies. On the other hand, in later cases the Fifth Circuit made it clear that the Clear Creek rule applied only to high school graduations and that school- encouraged prayer was constitutionally impermissible at school-related sporting events. Thus, in Doe v. Duncanville Independent School Dist., 70 F. 3d 402 (1995), it had described a high school graduation as "a significant, once in-a-lifetime event" to be contrasted with athletic events in "a setting that is far less solemn and extraord i-

- - - - - - 7 "The graduation prayers at issue in the instant case, in contrast, are infused with explicit references to Jesus Christ and otherwise appeal to distinctively Christian beliefs. The Court accordingly finds that use of these prayers during graduation ceremonies, considered in light of the overall manner in which they were delivered, violated the Establis h- ment Clause." App. to Pet. for Cert. E8. 8 Id., at E8E9.

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nary." Id., at 406407.9 In its opinion in this case, the Court of Appeals e x- plained: "The controlling feature here is the same as in Duncanville: The prayers are to be delivered at foot- ball games- hardly the sober type of annual event that can be appropriately solemnized with prayer. The distinction to which [the District] points is simply one without difference. Regardless of whether the prayers are selected by vote or spontaneously initiated at these frequently-recurring, informal, school- sponsored events, school officials are present and have the authority to stop the prayers. Thus, as we ind i- cated in Duncanville, our decision in Clear Creek II hinged on the singular context and singularly serious nature of a graduation ceremony. Outside that nu r- turing context, a Clear Creek Prayer Policy cannot survive. We therefore reverse the district court's holding that [the District's] alternative Clear Creek Prayer Policy can be extended to football games, irr e- spective of the presence of the nonsectarian, no n- proselytizing restrictions." 168 F. 3d, at 823. The dissenting judge rejected the majority's distinction between graduation ceremonies and football games. In his opinion the District's October policy created a limited public forum that had a secular purpose 10 and provided - - - - - - 9 Because the dissent overlooks this case, it incorrectly assumes that a "prayer-only policy" at football games was permissible in the Fifth Circuit. See post, at 67. 10 "There are in fact several secular reasons for allowing a brief, ser i- ous message before football games- some of which [the District] has listed in its policy. At sporting events, messages and/or invocations can promote, among other things, honest and fair play, clean competition, individual challenge to be one's best, importance of team work, and many more goals that the majority could conceive would it only pause

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neutral accommodation of noncoerced, private, religious speech.11 We granted the District's petition for certiorari, limited to the following question: "Whether petitioner's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause." 528 U. S. 1002 (1999). We conclude, as did the Court of Appeals, that it does. II The first Clause in the First Amendment to the Federal Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Fourteenth Amendment im- poses those substantive limitations on the legislative power of the States and their political subdivisions. Wallace v. Jaffree, 472 U. S. 38, 4950 (1985). In Lee v. Weisman, 505 U. S. 577 (1992), we held that a prayer deli v- ered by a rabbi at a middle school graduation ceremony violated that Clause. Although this case involves student prayer at a different type of school function, our analysis is properly guided by the principles that we endorsed in Lee. As we held in that case: "The principle that government may accommodate

- - - - - - to do so. "Having again relinquished all editorial control, [the District] has created a limited public forum for the students to give brief statements or prayers concerning the value of those goals and the methods for achieving them." 168 F. 3d, at 835. 11 "The majority fails to realize that what is at issue in this facial challenge to this school policy is the neutral accommodation of non- coerced, private, religious speech, which allows students, selected by students, to express their personal viewpoints. The state is not i n- volved. The school board has neither scripted, supervised, endorsed, suggested, nor edited these personal viewpoints. Yet the majority imposes a judicial curse upon sectarian religious speech." Id., at 836.

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the free exercise of religion does not supersede the fundamental limitations imposed by the Establis h- ment Clause. It is beyond dispute that, at a min i- mum, the Constitution guarantees that government may not coerce anyone to support or participate in re- ligion or its exercise, or otherwise act in a way which `establishes a [state] religion or religious faith, or tends to do so.' " Id., at 587 (citations omitted) (quot- ing Lynch v. Donnelly, 465 U. S. 668, 678 (1984)). In this case the District first argues that this principle is inapplicable to its October policy because the messages are private student speech, not public speech. It reminds us 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." Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (opinion of O'CONNOR, J.). We certainly agree with that distinction, but we are not persuaded that the pregame invocations should be regarded as "private speech." These invocations are authorized by a government policy and take place on government property at gover n- ment-sponsored school-related events. Of course, not every message delivered under such circumstances is the government's own. We have held, for example, that an individual's contribution to a government-created forum was not government speech. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). Although the District relies heavily on Rosenberger and similar cases involving such forums,12 it is clear that the pregame cere- - - - - - - 12 See, e.g., Brief for Petitioner 4448, citing Rosenberger, 515 U. S., 819 (limited public forum); Widmar v. Vincent, 454 U. S. 263 (1981) (limited public forum); Capitol Square Review and Advisory Bd. v. Pinette,

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mony is not the type of forum discussed in those cases. 13 The Santa Fe school officials simply do not "evince either `by policy or by practice,' any intent to open the [pregame ceremony] to `indiscriminate use,' . . . by the student body generally." Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270 (1988) (quoting Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 47 (1983)). Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student's me s- sage, see infra, at 1415, 17. By comparison, in Perry we rejected a claim that the school had created a limited public forum in its school mail system despite the fact that it had allowed far more speakers to address a much broader range of topics than the policy at issue here. 14 As we concluded in Perry, "selective access does not transform government property into a public forum." 460 U. S., at 47.Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, - - - - - - 515 U. S. 753 (1995) (traditional public forum); Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) (limited public forum). Although the District relies on these public forum cases, it does not actually argue that the pregame ceremony constitutes such a forum. 13 A conclusion that the District had created a public forum would help shed light on whether the resulting speech is public or private, but we also note that we have never held the mere creation of a public forum shields the government entity from scrutiny under the Estalis h- ment Clause. See, e.g., Pinette, 515 U. S., at 772 (O'CONNOR, J., concur- ring in part and concurring in judgment) ("I see no necessity to carve out. . . an exception to the endorsement test for the public forum context"). 14 The school's internal mail system in Perry was open to various private organizations such as "[l]ocal parochial schools, church groups, YMCA's, and Cub Scout units." 460 U. S., at 39, n. 2.

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Santa Fe's student election system ensures that only those messages deemed "appropriate" under the District's policy may be delivered. That is, the majoritarian process i m- plemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. Recently, in Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. ___ (2000), we explained why st u- dent elections that determine, by majority vote, which expressive activities shall receive or not receive school benefits are constitutionally problematic: "To the extent the referendum substitutes majority determinations for viewpoint neutrality it would u n- dermine the constitutional protection the program re- quires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is controlling here." Id., at __ (slip op., at 1617). Like the student referendum for funding in Southworth, this student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority.15 Because "fundamental

- - - - - - 15 If instead of a choice between an invocation and no pregame message, the first election determined whether a political speech should be made, and the second election determined whether the speaker should be a Democrat or a Republican, it would be rather clear that the public address system was being used to deliver a partisan message reflecting the viewpoint of the majority rather than a random statement by a private individual. The fact that the District's policy provides for the election of the speaker only after the majority has voted on her message identifies an obvious distinction between this case and the typical election of a "student body president, or even a newly elected prom king or queen."

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rights may not be submitted to vote; they depend on the outcome of no elections," West Virginia Bd. of Ed. v. Bar- nette, 319 U. S. 624, 638 (1943), the District's elections are insufficient safeguards of diverse student speech. In Lee, the school district made the related argument that its policy of endorsing only "civic or nonsectarian" prayer was acceptable because it minimized the intrusion on the audience as a whole. We rejected that claim by explaining that such a majoritarian policy "does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront." 505 U. S., at 594. Similarly, while Santa Fe's majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense. Moreover, the District has failed to divorce itself from the religious content in the invocations. It has not su c- ceeded in doing so, either by claiming that its policy is " `one of neutrality rather than endorsement' "16 or by characterizing the individual student as the "circuit- breaker"17 in the process. Contrary to the District's re- peated assertions that it has adopted a "hands-off" a p- proach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both pe r- ceived and actual endorsement of religion. In this case, as we found in Lee, the "degree of school involvement" makes it clear that the pregame prayers bear "the imprint of the State and thus put school-age children who objected in an untenable position." 505 U. S., at 590. The District has attempted to disentangle itself from the - - - - - - Post, at 5. 16 Brief for Petitioner 19 (quoting Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 248 (1990) (plurality opi n- ion)). 17 Tr. of Oral Arg. 7.

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religious messages by developing the two-step student election process. The text of the October policy, however, exposes the extent of the school's entanglement. The elections take place at all only because the school "board has chosen to permit students to deliver a brief invocation and/or message." App. 104 (emphasis added). The ele c- tions thus "shall" be conducted "by the high school student council" and "[u]pon advice and direction of the high school principal." Id., at 104105. The decision whether to deliver a message is first made by majority vote of the entire student body, followed by a choice of the speaker in a separate, similar majority election. Even though the particular words used by the speaker are not determined by those votes, the policy mandates that the "statement or invocation" be "consistent with the goals and purposes of this policy," which are "to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." Ibid. In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the pu r- pose of the message is "to solemnize the event." A reli g- ious message is the most obvious method of solemnizing an event. Moreover, the requirements that the message "promote good citizenship" and "establish the appropriate environment for competition" further narrow the types of message deemed appropriate, suggesting that a solemn, yet nonreligious, message, such as commentary on United States foreign policy, would be prohibited. 18 Indeed, the only type of message that is expressly endorsed in the text is an "invocation"- a term that primarily describes an - - - - - - 18 THE CHIEF JUSTICE's hypothetical of the student body president asked by the school to introduce a guest speaker with a biography of her accomplishments, see post, at 9 (dissenting opinion), obviously would pose no problems under the Establishment Clause.

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appeal for divine assistance.19 In fact, as used in the past at Santa Fe High School, an "invocation" has always en- tailed a focused religious message. Thus, the expressed purposes of the policy encourage the selection of a reli g- ious message, and that is precisely how the students understand the policy. The results of the elections d e- scribed in the parties' stipulation20 make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame cer e- mony.21 We recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of various occ a- sions so as to mark those occasions' significance. But such religious activity in public schools, as elsewhere, must comport with the First Amendment. The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property. The message is broadcast over the school's public address system, which remains subject to the control of school officials. It is fair to assume that the pregame ceremony is - - - - - - 19 See, e.g., Webster's Third New International Dictionary 1190 (1993) (defining "invocation" as "a prayer of entreaty that is usu[ally] a call for the divine presence and is offered at the beginning of a meeting or service of worship"). 20 See supra, at 45, and n. 4; 21 Even if the plain language of the October policy were facially neutral, "the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions." Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S., at 777 (O'CONNOR, J., concurring in part and concurring in judg- ment); see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534535 (1993) (making the same point in the Free Exercise co ntext).

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clothed in the traditional indicia of school sporting events, which generally include not just the team, but also chee r- leaders and band members dressed in uniforms sporting the school name and mascot. The school's name is likely written in large print across the field and on banners and flags. The crowd will certainly include many who display the school colors and insignia on their school T-shirts, jackets, or hats and who may also be waving signs di s- playing the school name. It is in a setting such as this that "[t]he board has chosen to permit" the elected student to rise and give the "statement or invocation." In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. In cases involving state participation in a religious activity, one of the relevant questions is "whether an objective observer, acquainted with the text, legislative history, and impleme n- tation of the statute, would perceive it as a state endors e- ment of prayer in public schools." Wallace, 472 U. S., at 73, 76 (O'CONNOR, J., concurring in judgment); see also Capital Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 777 (1995) (O'CONNOR, J., concurring in part and concurring in judgment). Regardless of the listener's support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school's seal of approval. The text and history of this policy, moreover, reinforce our objective student's perception that the prayer is, in actuality, encouraged by the school. When a governme n- tal entity professes a secular purpose for an arguably religious policy, the government's characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to "distinguis[h] a sham secular purpose from a sincere one." Wallace, 472 U. S., at 75 (O'CONNOR, J., concurring in judgment).

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Opinion of the Court

According to the District, the secular purposes of the policy are to "foste[r] free expression of private persons . . . as well [as to] solemniz[e] sporting events, promot[e] good sportsmanship and student safety, and establis[h] an appropriate environment for competition." Brief for Peti- tioner 14. We note, however, that the District's approval of only one specific kind of message, an "invocation," is not necessary to further any of these purposes. Additionally, the fact that only one student is permitted to give a content-limited message suggests that this policy does little to "foste[r] free expression." Furthermore, regardless of whether one considers a sporting event an appropriate occasion for solemnity, the use of an invocation to foster such solemnity is impermissible when, in actuality, it constitutes prayer sponsored by the school. And it is unclear what type of message would be both appropriately "solemnizing" under the District's policy and yet non- religious. Most striking to us is the evolution of the current pol icy from the long-sanctioned office of "Student Chaplain" to the candidly titled "Prayer at Football Games" regulation. This history indicates that the District intended to pre- serve the practice of prayer before football games. The conclusion that the District viewed the October policy simply as a continuation of the previous policies is dr a- matically illustrated by the fact that the school did not conduct a new election, pursuant to the current policy, to replace the results of the previous election, which occurred under the former policy. Given these observations, and in light of the school's history of regular delivery of a student-led prayer at athletic events, it is reasonable to infer that the specific purpose of the policy was to preserve a popular "state-sponsored religious practice." Lee, 505 U. S., at 596. School sponsorship of a religious message is impermi s- sible because it sends the ancillary message to members of

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the audience who are nonadherants "that they are outsi d- ers, not full members of the political community, and an accompanying message to adherants that they are insi d- ers, favored members of the political community." Lynch v. Donnelly, 465 U. S., at 688 (1984) (O'CONNOR, J., concur- ring). The delivery of such a message- over the school's public address system, by a speaker representing the stu- dent body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer- is not properly characterized as "private" speech. III The District next argues that its football policy is disti n- guishable from the graduation prayer in Lee because it does not coerce students to participate in religious obse r- vances. Its argument has two parts: first, that there is no impermissible government coercion because the pregame messages are the product of student choices; and second, that there is really no coercion at all because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary. The reasons just discussed explaining why the alleged "circuit-breaker" mechanism of the dual elections and student speaker do not turn public speech into private speech also demonstrate why these mechanisms do not insulate the school from the coercive element of the final message. In fact, this aspect of the District's argument exposes anew the concerns that are created by the majori- tarian election system. The parties' stipulation clearly states that the issue resolved in the first election was "whether a student would deliver prayer at varsity football games," App. 65, and the controversy in this case demo n- strates that the views of the students are not unanimous on that issue. One of the purposes served by the Establishment Clause

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is to remove debate over this kind of issue from gover n- mental supervision or control. We explained in Lee that the "preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere." 505 U. S., at 589. The two student elections authorized by the policy, coupled with the d e- bates that presumably must precede each, impermissibly invade that private sphere. The election mechanism, when considered in light of the history in which the policy in question evolved, reflects a device the District put in place that determines whether religious messages will be delivered at home football games. The mechanism e n- courages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause. Although it is true that the ultimate choice of student speaker is "attributable to the students," Brief for Petitioner 40, the District's decision to hold the constit u- tionally problematic election is clearly "a choice attribu t- able to the State," Lee, 505 U. S., at 587. The District further argues that attendance at the commencement ceremonies at issue in Lee "differs dra- matically" from attendance at high school football games, which it contends "are of no more than passing interest to many students" and are "decidedly extracurricular," thus dissipating any coercion. Brief for Petitioner 41. Atte n- dance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. Moreover, we may assume that the District is correct in arguing that the informal pressure to attend an athletic event is not as strong as a senior's desire to attend her own graduation ceremony. There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of a t-

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tending and participating in extracurricular activities as part of a complete educational experience. As we noted in Lee, "[l]aw reaches past formalism." 505 U. S., at 595. To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is "formalistic in the extreme." Ibid. We stressed in Lee the obvious observation that "adolescents are often susceptible to pressure from their peers towards confor- mity, and that the influence is strongest in matters of social convention." Id., at 593. High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a co m- mon cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between whether to attend these games or to risk facing a personally offensive religious ritual is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students for "[i]t is a tenet of the First Amendment that the State cannot re- quire one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state- sponsored religious practice." Id., at 596. Even if we regard every high school student's decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. For "the go v- ernment may no more use social pressure to enforce o r- thodoxy than it may use more direct means." Id., at 594. As in Lee, "[w]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to

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employ the machinery of the State to enforce a religious orthodoxy." Id., at 592. The constitutional command will not permit the District "to exact religious conformity from a student as the price" of joining her classmates at a va r- sity football game.22 The Religion Clauses of the First Amendment prevent the government from making any law respecting the establishment of religion or prohibiting the free exercise thereof. By no means do these commands impose a proh i- bition on all religious activity in our public schools. See, e.g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 395 (1993); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990); Wallace v. Jaffree, 472 U. S. 38, 59 (1985). Indeed, the common purpose of the Religion Clauses "is to secure religious liberty." Engel v. Vitale, 370 U. S. 421, 430 (1962). Thus, nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the pa r- ticular religious practice of prayer. IV Finally, the District argues repeatedly that the Does - - - - - - 22 "We think the Government's position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknow l- edge that what for many of Deborah's classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution co m- mands." Lee, 505 U. S., at 595596.

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have made a premature facial challenge to the October policy that necessarily must fail. The District emphasizes, quite correctly, that until a student actually delivers a solemnizing message under the latest version of the policy, there can be no certainty that any of the statements or invocations will be religious. Thus, it concludes, the Oct o- ber policy necessarily survives a facial challenge. This argument, however, assumes that we are con- cerned only with the serious constitutional injury that occurs when a student is forced to participate in an act of religious worship because she chooses to attend a school event. But the Constitution also requires that we keep in mind "the myriad, subtle ways in which Establishment Clause values can be eroded," Lynch, 465 U. S., at 694 (O'CONNOR, J., concurring), and that we guard against other different, yet equally important, constitutional injuries. One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion. Another is the implementation of a governmental electoral process that subjects the issue of prayer to a majoritarian vote. The District argues that the facial challenge must fail because "Santa Fe's Football Policy cannot be invalidated on the basis of some `possibility or even likelihood' of an unconstitutional application." Brief for Petitioner 17 (quoting Bowen v. Kendrick, 487 U. S. 589, 613 (1988)). Our Establishment Clause cases involving facial cha l- lenges, however, have not focused solely on the possible applications of the statute, but rather have considered whether the statute has an unconstitutional purpose. Writing for the Court in Bowen, THE CHIEF JUSTICE con- cluded that "[a]s in previous cases involving facial cha l- lenges on Establishment Clause grounds, e.g., Edwards v. Aguillard, [482 U. S. 578 (1987)]; Mueller v. Allen, 463 U. S. 388 (1983), we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v.

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Kurtzman, 403 U. S. 602, 612 (1971) . . . . which guides `[t]he general nature of our inquiry in this area,' Mueller v. Allen, supra, at 394." 487 U. S., at 602. Under the Lemon stan- dard, a court must invalidate a statute if it lacks "a secular legislative purpose." Lemon v. Kurtzman, 403 U. S. 602, 612 (1971). It is therefore proper, as part of this facial challenge, for us to examine the purpose of the October policy. As discussed, supra, at 1415, 17, the text of the October policy alone reveals that it has an unconstitutional pu r- pose. The plain language of the policy clearly spells out the extent of school involvement in both the election of the speaker and the content of the message. Additionally, the text of the October policy specifies only one, clearly pr e- ferred message- that of Santa Fe's traditional religious "invocation." Finally, the extremely selective access of the policy and other content restrictions confirm that it is not a content-neutral regulation that creates a limited public forum for the expression of student speech. Our examin a- tion, however, need not stop at an analysis of the text of the policy. This case comes to us as the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause. One of those practices was the District's long-established tradition of sanctioning student-led prayer at varsity football games. The narrow question before us is whether implementation of the October policy insulates the co n- tinuation of such prayers from constitutional scrutiny. It does not. Our inquiry into this question not only can, but must, include an examination of the circumstances su r- rounding its enactment. Whether a government activity violates the Establishment Clause is "in large part a legal question to be answered on the basis of judicial interpret a- tion of social facts. . . . Every government practice must be judged in its unique circumstances . . . ." Lynch, 465 U. S., at 693694 (O'CONNOR, J., concurring). Our discussion in

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the previous sections, supra, at 1518, demonstrates that in this case the District's direct involvement with school prayer exceeds constitutional limits. The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly- that this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to "solemnize" a foo t- ball game and that this single-student, year-long position is essential to the protection of student speech. We refuse to turn a blind eye to the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer. Therefore, the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation. We need not wait for the inevitable to confirm and magnify the constit u- tional injury. In Wallace, for example, we invalidated Alabama's as yet unimplemented and voluntary "moment of silence" statute based on our conclusion that it was enacted "for the sole purpose of expressing the State's endorsement of prayer activities for one minute at the beginning of each school day." 472 U. S., at 60; see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993). Therefore, even if no Santa Fe High School student were ever to offer a religious message, the October policy fails a facial challenge because the attempt by the District to encourage prayer is also at issue. Go v- ernment efforts to endorse religion cannot evade constit u- tional reproach based solely on the remote possibility that those attempts may fail. This policy likewise does not survive a facial challenge because it impermissibly imposes upon the student body a majoritarian election on the issue of prayer. Through its election scheme, the District has established a governme n-

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tal electoral mechanism that turns the school into a forum for religious debate. It further empowers the student body majority with the authority to subject students of minority views to constitutionally improper messages. The award of that power alone, regardless of the students' ultimate use of it, is not acceptable.23 Like the referendum in Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. ___ (2000), the election mechanism established by the District undermines the essential protection of mino r- ity viewpoints. Such a system encourages divisiveness along religious lines and threatens the imposition of coe r- cion upon those students not desiring to participate in a religious exercise. Simply by establishing this school- related procedure, which entrusts the inherently nongo v- ernmental subject of religion to a majoritarian vote, a constitutional violation has occurred.24 No further injury is required for the policy to fail a facial challenge. To properly examine this policy on its face, we "must be - - - - - - 23 THE CHIEF JUSTICE accuses us of "essentially invalidat[ing] all st u- dent elections," see post, at 5. This is obvious hyperbole. We have concluded that the resulting religious message under this policy would be attributable to the school, not just the student, see supra, at 918. For this reason, we now hold only that the District's decision to allow the student majority to control whether students of minority views are subjected to a school-sponsored prayer violates the Establishment Clause. 24 THE CHIEF JUSTICE contends that we have "misconstrue[d] the na- ture . . . [of] the policy as being an election on `prayer' and `reli gion,' " see post, at 34. We therefore reiterate that the District has stipulated to the facts that the most recent election was held "to determine whether a student would deliver prayer at varsity football games," that the "students chose to allow a student to say a prayer at football games," and that a second election was then held "to determine which student would deliver the prayer." App. 6566 (emphases added). Furthermore, the policy was titled "Prayer at Football Games." Id., at 99 (emphasis added). Although the District has since eliminated the word "prayer" from the policy, it apparently viewed that change as sufficiently minor as to make holding a new election unne cessary.

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deemed aware of the history and context of the community and forum," Pinette, 515 U. S., at 780 (O'CONNOR, J., con- curring in part and concurring in judgment). Our exam i- nation of those circumstances above leads to the concl u- sion that this policy does not provide the District with the constitutional safe harbor it sought. The policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events. The judgment of the Court of Appeals is, accordingly, affirmed. It is so ordered.

Cite as: 530 U. S. ____ (2000) 1

REHNQUIST, C. J., dissenting

SUPREME COURT OF THE UNITED STATES _________________

No. 9962 _________________

SANTA FE INDEPENDENT SCHOOL DISTRICT, PETITIONER v. JANE DOE, INDIVIDUALLY AND AS NEXT FRIEND FOR HER MINOR CHILDREN, JANE AND JOHN DOE, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 19, 2000]

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting. The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court's opi n- ion; it bristles with hostility to all things religious in pu b- lic life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." Presidential Proclamation, 1 Messages and Papers of the Presidents, 17891897, p. 64 (J. Richardson ed. 1897). We do not learn until late in the Court's opinion that respondents in this case challenged the district's student- message program at football games before it had been put into practice. As the Court explained in United States v. Salerno, 481 U. S. 739, 745 (1987), the fact that a policy might "operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly

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invalid." See also Bowen v. Kendrick, 487 U. S. 589, 612 (1988). While there is an exception to this principle in the First Amendment overbreadth context because of our concern that people may refrain from speech out of fear of prosecution, Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. ___ (1999), ___ (slip op., at 5 7), there is no similar justification for Establishment Clause cases. No speech will be "chilled" by the existence of a government policy that might unconstitutionally endorse religion over nonreligion. Therefore, the question is not whether the district's policy may be applied in violation of the Establishment Clause, but whether it inevitably will be. The Court, venturing into the realm of prophesy, decides that it "need not wait for the inevitable" and invalidates the district's policy on its face. See ante, at 24. To do so, it applies the most rigid version of the oft-criticized test of Lemon v. Kurtzman, 403 U. S. 602 (1971).1 Lemon has had a checkered career in the decisional law of this Court. See, e.g., Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398399 (1993) (SCALIA, J., concurring in judgment) (collecting opinions

- - - - - - 1 The Court rightly points out that in facial challenges in the Esta b- lishment Clause context, we have looked to Lemon's three factors to "guid[e] [t]he general nature of our inquiry." Ante, at 2223 (internal quotation marks omitted) (citing Bowen v. Kendrick, 487 U. S. 589, 602 (1988)). In Bowen, we looked to Lemon as such a guide and determined that a federal grant program was not invalid on its face, noting that "[i]t has not been the Court's practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that pa r- ticular applications may result in unconstitutional use of funds." 487 U. S., at 612 (internal quotation marks omitted). But here the Court, rather than look to Lemon as a guide, applies Lemon's factors strin- gently and ignores Bowen's admonition that mere anticipation of unconstitutional applications does not warrant striking a policy on its face.

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criticizing Lemon); Wallace v. Jaffree, 472 U. S. 38, 108 114 (1985) (REHNQUIST, J., dissenting) (stating that Lemon's "three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service" (internal quotation marks omitted)); Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646, 671 (1980) (STEVENS, J., dissenting) (deriding "the sisyphean task of trying to patch together the blurred, indistinct, and variable barrier described in Lemon"). We have even gone so far as to state that it has never been binding on us. Lynch v. Donnelly, 465 U. S. 668, 679 (1984) ("[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. . . . In two cases, the Court did not even apply the Lemon `test' [citing Marsh v. Chambers, 463 U. S. 783 (1983), and Larson v. Valente, 456 U. S. 228 (1982)"]). Indeed, in Lee v. Weisman, 505 U. S. 577 (1992), an opinion upon which the Court relies heavily today, we mentioned but did not feel compelled to apply the Lemon test. See also Agostini v. Felton, 521 U. S. 203, 233 (1997) (stating that Lemon's entanglement test is merely "an aspect of the inquiry into a statute's effect"); Hunt v. McNair, 413 U. S. 734, 741 (1973) (stating that the Lemon factors are "no more than helpful signposts"). Even if it were appropriate to apply the Lemon test here, the district's student-message policy should not be invalidated on its face. The Court applies Lemon and holds that the "policy is invalid on its face because it e s- tablishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the pe r- ception of encouraging the delivery of prayer at a series of important school events." Ante, at 26. The Court's reli- ance on each of these conclusions misses the mark. First, the Court misconstrues the nature of the "majori- tarian election" permitted by the policy as being an ele c-

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REHNQUIST, C. J., dissenting

tion on "prayer" and "religion."2 See ante, at 22, 26. To the contrary, the election permitted by the policy is a two- fold process whereby students vote first on whether to have a student speaker before football games at all, and second, if the students vote to have such a speaker, on who that speaker will be. App. 104105. It is conceivable that the election could become one in which student candidates campaign on platforms that focus on whether or not they will pray if elected. It is also conceivable that the election could lead to a Christian prayer before 90 percent of the football games. If, upon implementation, the policy ope r- ated in this fashion, we would have a record before us to review whether the policy, as applied, violated the Esta b- lishment Clause or unduly suppressed minority vie w- points. But it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation. It is also possible that the election would not focus on prayer, but on public speaking ability or social popularity. And if student ca m- paigning did begin to focus on prayer, the school might decide to implement reasonable campaign restrictions. 3 - - - - - - 2 The Court attempts to support its misinterpretation of the nature of the election process by noting that the district stipulated to facts about the most recent election. See ante, at 25, n. 24. Of course, the most recent election was conducted under the previous policy- a policy that required an elected student speaker to give a pregame invocation. See App. 6566, 99100. There has not been an election under the policy at issue here, which expressly allows the student speaker to give a me s- sage as opposed to an invocation. 3 The Court's reliance on language regarding the student referendum in Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. ___ (2000), to support its conclusion with respect to the election process is misplaced. That case primarily concerned free speech, and, more pa r- ticularly, mandated financial support of a public forum. But as stated above, if this case were in the "as applied" context and we were presented with the appropriate record, our language in Southworth could become more applicable. In fact, Southworth itself demonstrates the impropriety

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REHNQUIST, C. J., dissenting

But the Court ignores these possibilities by holding that merely granting the student body the power to elect a speaker that may choose to pray, "regardless of the stu- dents' ultimate use of it, is not acceptable." Ante, at 25. The Court so holds despite that any speech that may occur as a result of the election process here would be private, not government, speech. The elected student, not the government, would choose what to say. Support for the Court's holding cannot be found in any of our cases. And it essentially invalidates all student elections. A newly elected student body president, or even a newly elected prom king or queen, could use opportunities for public speaking to say prayers. Under the Court's view, the mere grant of power to the students to vote for such offices, in light of the fear that those elected might publicly pray, violates the Establishment Clause. Second, with respect to the policy's purpose, the Court holds that "the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation." Ante, at 24. But the policy itself has plausible secular purposes: "[T]o sole m- nize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." App. 104105. Where a governmental body "expresses a plausible secular purpose" for an enactment, "courts should generally defer to that stated intent." Wallace, supra, at 7475 (O'CONNOR, J., concurring in judgment); see also Mueller v. Allen, 463 U. S. 388, 394395 (1983) (stressing this Court's "reluctance to attribute uncon- stitutional motives to States, particularly when a plausible secular purpose for the State's program may be discerned - - - - - - of making a decision with respect to the election process without a record of its operation. There we remanded in part for a determination of how the referendum functions. See id., at __ (slip op., at 1617).

6 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE

REHNQUIST, C. J., dissenting

from the face of the statute"). The Court grants no defer- ence to- and appears openly hostile toward- the policy's stated purposes, and wastes no time in concluding that they are a sham. For example, the Court dismisses the secular purpose of solemnization by claiming that it "invites and encourages religious messages." Ante, at 14; Cf. Lynch, 465 U. S, at 693 (O'CONNOR, J., concurring) (discussing the "legitimate secular purposes of solemnizing public occasions"). The Court so concludes based on its rather strange view that a "religious message is the most obvious means of sole m- nizing an event." Ante, at 14. But it is easy to think of solemn messages that are not religious in nature, for example urging that a game be fought fairly. And spor t- ing events often begin with a solemn rendition of our national anthem, with its concluding verse "And this be our motto: `In God is our trust.' " Under the Court's logic, a public school that sponsors the singing of the national anthem before football games violates the Establishment Clause. Although the Court apparently believes that solemnizing football games is an illegitimate purpose, the voters in the school district seem to disagree. Nothing in the Establishment Clause prevents them from making this choice.4 - - - - - - 4 The Court also determines that the use of the term "invocation" in the policy is an express endorsement of that type of message over all others. See ante, at 1415. A less cynical view of the policy's text is that it permits many types of messages, including invocations. That a policy tolerates religion does not mean that it improperly endorses it. Indeed, as the majority reluctantly admits, the Free Exercise Clause mandates such tolerance. See ante, at 21 ("[N]othing in the Constitu- tion as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday"); see also Lynch v. Donnelly, 465 U. S. 668, 673 (1984) ("Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all

Cite as: 530 U. S. ____ (2000) 7

REHNQUIST, C. J., dissenting

The Court bases its conclusion that the true purpose of the policy is to endorse student prayer on its view of the school district's history of Establishment Clause violations and the context in which the policy was written, that is, as "the latest step in developing litigation brought as a cha l- lenge to institutional practices that unquestionably vi o- lated the Establishment Clause." Ante, at 16, 17, and 22. But the context- attempted compliance with a District Court order- actually demonstrates that the school dis- trict was acting diligently to come within the governing constitutional law. The District Court ordered the school district to formulate a policy consistent with Fifth Circuit precedent, which permitted a school district to have a prayer-only policy. See Jones v. Clear Creek Independent School Dist., 977 F. 2d 963 (CA5 1992). But the school district went further than required by the District Court order and eventually settled on a policy that gave the student speaker a choice to deliver either an invocation or a message. In so doing, the school district exhibited a willingness to comply with, and exceed, Establishment Clause restrictions. Thus, the policy cannot be viewed as having a sectarian purpose.5 The Court also relies on our decision in Lee v. Weisman, 505 U. S. 577 (1992), to support its conclusion. In Lee, we concluded that the content of the speech at issue, a - - - - - - religions, and forbids hostility toward any"). 5 Wallace v. Jaffree, 472 U. S. 38 (1985), is distinguishable on these grounds. There we struck down an Alabama statute that added an express reference to prayer to an existing statute providing a moment of silence for meditation. Id., at 59. Here the school district added a secular alternative to a policy that originally provided only for prayer. More importantly, in Wallace, there was "unrebutted evidence" that pointed to a wholly religious purpose, id., at 58, and Alabama "conceded in the courts below that the purpose of the statute was to make prayer part of daily classroom activity," id., at 7778 (O'CONNOR, J., concur- ring in judgment). There is no such evidence or concession here.

8 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE

REHNQUIST, C. J., dissenting

graduation prayer given by a rabbi, was "directed and controlled" by a school official. Id., at 588. In other words, at issue in Lee was government speech. Here, by contrast, the potential speech at issue, if the policy had been a l- lowed to proceed, would be a message or invocation s e- lected or created by a student. That is, if there were speech at issue here, it would be private speech. The "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," applies with particu- lar force to the question of endorsement. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (plurality opinion) (emphasis in original). Had the policy been put into practice, the students may have chosen a speaker according to wholly secular crit e- ria- like good public speaking skills or social popularity- and the student speaker may have chosen, on her own accord, to deliver a religious message. Such an application of the policy would likely pass constitutional muster. See Lee, supra, at 630, n. 8 (SOUTER, J., concurring) ("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 be harder to attribute an endorsement of religion to the State"). Finally, the Court seems to demand that a government policy be completely neutral as to content or be considered one that endorses religion. See ante, at 14. This is un- doubtedly a new requirement, as our Establishment Clause jurisprudence simply does not mandate "content neutrality." That concept is found in our First Amen d- ment speech cases and is used as a guide for determining when we apply strict scrutiny. For example, we look to "content neutrality" in reviewing loudness restrictions

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REHNQUIST, C. J., dissenting

imposed on speech in public forums, see Ward v. Rock Against Racism, 491 U. S. 781 (1989), and regulations against picketing, see Boos v. Barry, 485 U. S. 312 (1988). The Court seems to think that the fact that the policy is not content neutral somehow controls the Establishment Clause inquiry. See ante, at 14. But even our speech jurisprudence would not require that all public school actions with respect to student speech be content neutral. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986) (allowing the imp o- sition of sanctions against a student speaker who, in nominating a fellow student for elective office during an assembly, referred to his candidate in terms of an elab o- rate sexually explicit metaphor). Schools do not violate the First Amendment every time they restrict student speech to certain categories. But under the Court's view, a school policy under which the student body president is to solemnize the graduation ceremony by giving a favorable introduction to the guest speaker would be facially unco n- stitutional. Solemnization "invites and encourages" prayer and the policy's content limitations prohibit the student body president from giving a solemn, yet non- religious, message like "commentary on United States foreign policy." See ante, at 14. The policy at issue here may be applied in an unconst i- tutional manner, but it will be time enough to invalidate it if that is found to be the case. I would reverse the jud g- ment of the Court of Appeals.