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2009-2010 Supreme Court Term: (3) McComb v. Crehan – Student Religious Speech at Graduation

by Professor Will Huhn on November 25, 2009

in Constitutional Law,Wilson Huhn

     The Constitution contains two provisions protecting freedom of religion: the Establishment Clause and the Free Exercise Clause.  There are many situations where these two clauses conflict.  Cases where students wish to speak about their religion at graduation is one of those situations.

     Two cases involving religious speech at high school graduations were appealed to the Supreme Court this year: McComb v. Crehan (No. 08-1566) (out of Florida) and Corder v. Lewis-Palmer School District (No. 09-257) (out of Colorado).  The Supreme Court recently decided not to hear the Nevada case.  It has not yet decided whether to hear the appeal of the Colorado student.

     The parties in the Nevada case were Brittany McComb and the Clark County School District.  Ms McComb was one of three valedictorians in the 2006 graduating class from Foothill High School in Henderson, Nevada.   School officials asked the valedictorians to submit their speeches to the assistant principal for review and comment.  The assistant principal instructed Ms. McComb not to include certain passages which he found to be "sectarian" and "proselytizing."  School officials allowed her to make the following statements describing the importance of her deep religious fath:

The summer after my freshman year I quit swimming. I quit trying to fill the huge void in my soul with the meager accomplishments I managed to obtain in swimming. After quitting this amazing sense of peace came over me, and I realized after fifteen years of sitting on the story time rug there was a teacher there trying to help me — God. I had ignored Him all these years and He was just trying to show me what shape fits into the cut-out in my soul.

This hole couldn't be filled with swimming, with friends, with family, with dating, with partying, with drinking, with anything but God. His love is âthat something moreâ we all desire. It's unprejudiced, it's merciful, it's free, it's real, it's huge and it's everlasting.

     However, the school struck out the following portions of her speech:

God's love is so great that he gave His only son up to an excruciating death on a cross so His blood would cover all our shortcomings and our relationship with Him could be restored. And he gave us a choice to live for ourselves or to live for something greater than ourselves – eternity and His Love.

That is why Christ died. John 10:10 says He died so we no longer have to reach and fall short, so we can have life âand life to the fullestâ.

And I can guarantee, 100%, no doubt in my mind, that if you choose to fill yourself with God's love rather than the things society tells us will satisfy us, you will find success, you will find your self worth. You will thrive whether you attend a prestigious university next fall and become a successful career man or woman or begin a life long manager position at McDonald's tomorrow. Because the fact is man has an innate desire to be apart of something greater than himself. That something is God's plan. And God's plan for each of our lives may not leave us with an impressive and extensive resume, but if we pursue His plan, He promises to fill us. Jeremiah 29:11 says, ââFor I know the plans I have for you,â declares the Lord, âplans to prosper you and not to harm you, plans to give you a hope and a future.ââ Trust me, this block fits.

      Before graduation school officials warned Ms. McComb that if she deviated from the approved text of her remarks they would cut off her microphone.  She did, and they did.

     T. Michael Cart of Examiner.com reports that Ms. McComb then sued the school district with the assistance of The Rutherford Institute.  Ms. McComb claimed that the school district had violated her rights under the First Amendment.  Ms. McComb contended that the School District had infringed upon her rights to freedom of speech and freedom of religion – specifically, the Free Exercise Clause, which prohibits the government from interfering with an individual's right to practice religion.  The school district maintained that, having decided to exercise control over the content of the graduation exercise, it was required under the Establishment Clause of the Constitution to ensure that graduation speakers did not go overboard in pushing their religious views on other students – it is, after all, their graduation too.

     The importance of freedom of religion may be inferred from the fact that the religion clauses constitute the first words of the First Amendment.  The First Amendment states:

     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 District Court in McComb v. Crehan ruled that the case could go forward against school officials, but the Ninth Circuit Court of Appeals, in a summary opinion relying on two previous decisions, reversed and entered judgment for the school district.  On November 16, the SUnited States Supreme Court declined to hear Ms. McComb's appeal from the decision of the Ninth Circuit.

     The United States Supreme Court has not ruled directly on this point.  The principal case involving the First Amendment rights of students is Barnette v. West Virginia Board of Education (1943) in which the Court ruled that public school students could not be required to salute the American flag and recite the Pledge of Allegiance.  In a famous passage from that opinion, Justice Robert Jackson stated:

     If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

     Barnette can be distinguished from this case because the West Virginia authorities were compelling students to speak, whereas in this case Nevada school officials were prohibiting a student from speaking.  There are a number of cases involving suppression of student speech, but the results are mixed.  The most famous of these cases is Tinker v. Des Moines Independent School District (1969),  in which the Supreme Court upheld the right of a student to wear a black armband in opposition to the War in Vietnam.  In that case the Court stated:

students do not shed their constitutional rights to freedom of speech or expression at the school house gate.

     In three more recent cases, however, the Supreme Court has ruled in favor of school officials who censored student speech.  In Bethel School District No. 403 v. Fraser (1986), a student was suspended for three days for using an extended and graphic sexual metaphor in a nominating speech during a school assembly, and the Supreme Court upheld his suspension. In Hazelwood School District v. Kuhlmeier (1988), a high school principal withheld from publication in the student newspaper two stories regarding teenage pregnancy and divorce. The Supreme Court ruled that the student newspaper was published by the school as part of the curriculum, and that teachers, administrators, and the school board therefore had the authority to control its contents. Most recently, in Morse v. Frederick (2007), the Supreme Court upheld the suspension of a student who raised a banner stating "Bong Hits 4 Jesus" at a school-sponsored rally watching the passing of the Olympic Torch.

     There are a number of interrelated factors here.  On the one hand, school officials have the right to prescribe the curriculum, protect students' right to privacy, maintain order, and prohibit patently offensive speech.   These principles explain the results in Fraser, Kuhlmeier, and Morse.  Furthermore, public school officials are also required not to hold religious exercises in the schools or require students to attend them – that is why school officials may not invite members of the clergy to deliver prayers at graduation.  Finally, there is the nature of the speech that the student intented to engage in – religious speech is a far cry from lewdness, defamation, or drug-related speech.

     The key fact in this case is that school officials did, in fact, decide to censor the valedictory remarks.  If school officials are found to have this power in shaping the content of the graduation exercise, then what they did in this case may be considered proper, much as they have the power to censor a school newspaper.  On the other hand, students have the right to freedom of speech,  and political and religious speech is considered to have the highest value under the Constitution.  While the schools may not use student speech as a means of evading their responsibility under the Establishment Clause – they may not, for example, simply choose a student rather than a teacher to lead other students in prayer – in my opinion a valedictory address ought to be considered to be the expression of the individual student, and should not be attributable to school officials.  In my view school officials should not attempt to exercise editorial control over student speeches at graduation, and Ms. McComb should have been permitted to say whatever she wanted of a political or religious nature in her speech.

     I shall discuss the Colorado case in a future posting.

Visit Professor Huhn's website on Constitutional Law for information and links to sources and materials on Constitutional Law.

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