School Officials Lack Understanding of the First Amendment
It seems every year I read about a dozen or so stories involving students being censored by their school because the principal lacks an understanding of the Establishment Clause of the First Amendment. In large part I blame the ACLU and their incessant law suits for the ignorance portrayed by school officials. To give you a small example as to what I mean, take a look at this article in USA Today from last year.
In New Jersey the ACLU defended the students right to sing the song Awesome God in an after school talent show on the basis that it was the child who sang the song and not the school. At the same time, an ACLU affiliate in Nevada has taken the side of school authorities, banishing certain religious speech. In June, during high school graduation exercises at Foothill High School in Henderson, Nev., valedictorian Brittany McComb was reading her address when, suddenly, school officials cut off the microphone as she was about to make a reference to God, or the Lord.
In this case Allen Lichtenstein, general counsel for the ACLU of Nevada said “There should be no controversy here. It’s important for people to understand that a student was given a school-sponsored forum … in essence, it was a school-sponsored speech,” thereby violating the Establishment Clause.
Is it no wonder school officials are clueless as to the scope of the First Amendment, when even the ACLU, the so-called champions of the First Amendment can’t make up their minds.
Yesterday the Liberty Counsel announced they will be filing a lawsuit on behalf of Erica Corder against the Lewis Palmer School District. In this case the assistant principal threatened to withhold Erica’s diploma unless she publicly apologized for speaking about her faith in Jesus Christ during her valedictorian speech.
“Principal Brewer later indicated that her comments were “immature.” He said that she could only receive her diploma if she apologized to the school community. Erica prepared a statement saying the message was her own and was not endorsed by the principal. Brewer insisted that she include the words: “I realize that, had I asked ahead of time, I would not have been allowed to say what I did.” Erica complied because she feared the school would withhold her diploma. She was also afraid that the school would put disciplinary notes in her file and would generate negative publicity, which could prevent her from becoming a school teacher. Principal Brewer sent out Erica’s message in an e-mail to the entire high school community. Soon after, Erica received her diploma.”
The Department of Education needs to take better steps in insuring its Principals have an understanding of the First Amendment, and what actions are/are not allowed in public schools. The Supreme Court has ruled on numerous occasions that religious speech by students is protected speech as long as it is not endorsed by the school.
In SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE (2000)
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 prohibition on all religious activity in our public schools. 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 particular religious practice of prayer.
A more striking example of came in ABINGTON SCHOOL DIST. v. SCHEMPP (1963), Justice Goldberg and Justice Harlan wrote in their concurring opinion
The First Amendment’s guarantees, as applied to the States through the Fourteenth Amendment, foreclose not only laws “respecting an establishment of religion” but also those “prohibiting the free exercise thereof.” These two proscriptions are to be read together, and in light of the single end which they are designed to serve. The basic purpose of the religion clause of the First Amendment is to promote and assure the fullest possible scope of religious liberty and tolerance for all and to nurture the conditions which secure the best hope of attainment of that end.
The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.
As Goldberg noted “the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.” Therein lies the problem, school officials no longer have the ability or willingness because they are either uninformed, or misinformed. School officials have been led to believe that the mere mention of God on schools grounds is a violation of the establishment clause. This is an issue which needs to be corrected.
It is unfortunate that the first lesson these graduates learn as they enter into adulthood is one of censorship and intolerance.
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Nearly a year ago, my son Matthew LaClair (Google name for his story) became involved in a widely reported case involving religious freedom in public school. Because of my deep commitment to religious freedom under the First Amendment, I have steadfastly supported my son in seeking and finally obtaining a remedy from our local Board of Education. Although Matthew suffered compensable damages, apparently unlike Ms. Corder, our settlement is non-monetary.
I have been practicing law for thirty years, and have a deep commitment to students’ religious freedom. In fact, when I first read about this case I was outraged that the school district had shut down the students’ expression. Reading further, however, I saw that was not the case. It might have been under other circumstances, but in fact it was not.
Both the student and the school district can be faulted to a point: the student for lying about her intentions, delivering her remarks by stealth and dishonesty, and departing from the purposes of the fifteen-student joint statement; the school district for withholding her diploma. However, the school’s principal was correct in observing that Ms. Corder’s remarks were immature. They were also arrogant and presumptuous.
Under the law, what might have happened had Ms. Corder approached the situation honestly no longer matters. She delivered her remarks, and therefore has no ground to complain that her right to speak was squelched. It was not.
The only “damage” done to her has been fully remedied by all accounts. She has her diploma and is apparently attending the college of her choice. The so-called Liberty Counsel’s news release makes it quite clear that the only remedy she is seeking is prospective and does not pertain to any rights she presently holds. I predict that her case will quickly be dismissed because she lacks standing; the same reason that Michael Newdow’s action was dismissed, only Ms. Corder’s case is far clearer because she no longer attends that school. (Mr. Newdow’s son did, but because Mr. Newdow was not the custodial parent he was denied standing.) It will also be dismissed because it requests a prospective remedy without a present plaintiff who has standing.
There is no case without a legally cognizable remedy. Where is Ms. Corder’s case?
My son opened a topic on our local web site to discuss this case. Feel free to visit us at http://forums.kearnyontheweb.com/index.php?showtopic=14760. I post as Paul, which is my first name. He posts under his full name, which is Matthew LaClair.