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November 9, 2012

The Establishment Clause and the Free Speech Clause in the Context of the Texas High School Cheerleader Religious Banner Dispute

Co-authored with Professor Alan Brownstein and cross-posted from Justia's Verdict.

In the space below, we explore some very interesting and complex First Amendment issues that are implicated in a recent lawsuit in Texas. The suit was brought by a group of public high school (Kuntze High School) cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games.  The district barred the religious banners, through which the football players had run as they came onto the field, after complaints by The Freedom From Religion Foundation that the practice of displaying such banners at football games of a public high school violates the Establishment Clause of the First Amendment.

The cheerleaders who filed suit seeking to continue the practice claim not only that the Establishment Clause does not forbid what they are doing, but also that that they have a First Amendment right themselves, under the Free Speech Clause, to continue to display the banners.  The case is set for trial next year, but in the meantime, a Texas state court judge last month granted preliminary relief in favor of the cheerleaders, directing the school district to permit the cheerleaders to display the banners, because of his view that the cheerleaders will likely prevail on their claims when the case is fully resolved.  As we explain below, we think—in light of the facts that are alleged by the cheerleaders in their Complaint—that under existing Supreme Court case law, both the Establishment Clause and the Free Speech Clause of the First Amendment cut against the cheerleaders in this case.  (We should make clear that although some of the current Justices might disagree with the case law currently on the books, we analyze the cheerleaders’ dispute under current doctrine that is binding on lower courts and litigants.)

The Establishment Clause Analysis

Our starting point is that if the school officials themselves had decided—or had directed the cheerleaders—to use banners that included religious messages, this would violate the Establishment Clause.  It seems pretty clear under current case law that such state action would be unconstitutional.

But the cheerleaders (supported by positions adopted by Governor Rick Perry and the Texas Attorney General) argue that this situation is different, because the banners constitute private speech on behalf of the cheerleaders that is not attributed to the school.  Under the selection procedures used by Kuntze High School, cheerleaders are not selected by school officials, but rather are chosen, after tryouts, by a panel of (Lamar) University cheerleaders.

According to the allegations in the Complaint, Kuntze cheerleaders decide what goes on the banners; there is no control exercised by school employees over the content of the displays.  Moreover, the banners are paid for by cheerleaders, using money that comes from private sources, rather than public school funding.  And the school district regulations identify activities such as banner displays at football games as a limited public forum, suggesting that the school is permitting individual students to speak, but not associating itself with the messages students express.

Even in light of these facts, we think the cheerleaders’ display of bible-verse-bearing banners raises serious Establishment Clause problems.  A high school football games is a quintessential traditional school-sponsored activity, and providing banners for the players to run through is a part of that school-sponsored activity.  For that reason, to any objective outside observer, the cheerleaders and the banners they display bear the imprimatur of the school.  In a case (Hazelwood) permitting public high school officials to censor high school newspaper articles—even though the articles bore the bylines of individual student authors—the Supreme Court reasoned that school-sponsored activities implicate government promotion of speech, rather than just the toleration of speech.  As a result, even if the school disclaims any approval of a student’s message, the overall public imprimatur remains.

Putting a disclaimer on the school newspaper doesn’t change its status as a school-sponsored activity any more than a one-paragraph disclaimer can transform high school football games from school-sponsored activities into private events.  Although the high school newspaper could be considered to be part of the school’s curriculum, which creates an even greater imprimatur of school support– and football games are less easily characterized as part of the school curriculum—we think the analogy has some force.

What about the fact that the school does not pay for the banners?  We think that under existing case law, the private nature of the funding of religious displays does not necessarily control the Establishment Clause analysis. The key point is that the religious message is displayed on public property during a school-sponsored event, a football game.  Cases involving the prominent display on public property of privately created nativity scenes (such as the Allegheny County case) demonstrate that private religious displays, standing alone on public property, can violate the Establishment Clause.  Given the sensitivity in the case law to religious coercion and endorsement in the context of public schools, the possibility of an Establishment Clause violation might be even stronger here than it was in cases like Allegheny County—which involved a crèche in the foyer of a public building used for conventional governmental purposes.

Another key factor to be considered under the Supreme Court’s cases is the extent to which other students might be made to feel unwelcome because religious banners are displayed as part of the organized, pre-game activities.  Santa Fe Ind. Sch. Dist. v. Doe (a case forbidding a high school from permitting a student-elected Chaplain to lead a prayer at a high school football game) makes clear that football games are school-sponsored activities that are important to many students, and that it is not permissible to force students to have to choose between attending games or being exposed to unwelcome religious displays or messages.

When we widen the constitutional focus to locate Establishment Clause disputes in a larger perspective, we readily see that a government’s decision to delegate authority to private individuals as to what messages will be permitted at publicly sponsored events cannot reasonably be understood to avoid constitutional constraints. This would be obvious if we were talking about delegating authority that did not focus on expression. Suppose, for instance, that a school delegated authority to a student committee to decide where graduates sit on graduation day, and the committee decided that all the black graduates should sit in the back of the auditorium.  No one could deny that this would violate the Equal Protection Clause, even though the individual students on the committee, not school officials, made the discriminatory decision.

And the same reasoning often applies to decisions about who gets to speak and what they can say.  Kuntze High School is alleged to have delegated its authority to decide what messages are communicated on the banners the players will run through to enter the field at school football games to the high school cheerleaders. And it also seems that the very decision about which students get to be cheerleaders in the first place is delegated to cheerleaders from Lamar University.  But the school can’t escape constitutional responsibility for its decisions by giving authority over school-sponsored expressive activity to a private group of students or anyone else.

This almost has to be true if we care about safeguarding Establishment Clause values. If a school can delegate authority to student groups with regard to these kinds of activities and avoid constitutional review, then the cheerleaders could decide to lead the students at football games in prayers, rather than school cheers (and the Supreme Court’s decision in Santa Fe v. Doe clearly forbids that). Or the school could delegate to a student group the authority to decide upon whatever banners the group’s members want to hang on the interior walls of the school building.

If the student group decided to hang 30’ by 10’ banners proclaiming sectarian messages on the walls of the school building, would we say there would be no Establishment Clause violation here either, simply because the school had delegated its authority to students, rather than exercised its power directly? The Court rejected this kind of an argument in Santa Fe v. Doe when it held that a public high school could not avoid Establishment Clause requirements by ceding the power to decide whether or not to have a prayer at school football games to the student body.

Free Speech Analysis

But what about the free speech rights of the cheerleaders?  Plaintiffs argue that because the speech on the banners is not attributable to the school, it is private speech protected by the Free Speech Clause of the First Amendment. They thus suggest that they have a constitutional right to control the content of these banners free from government interference. They argue that the school has the authority to permit them to display their banners at the football game for the football players to run through, and that once the school does so, the Constitution protects them against regulations that would restrict the content of what they say.

The key problem with this argument is that even if we assume for purposes of argument that plaintiffs are correct that they are engaged in private speech (not attributable to the school), the school has not opened up its property (the football field) for expression by any other students. No one else besides the cheerleaders gets to place their banners in front of the football players entering the field; only the high school cheerleaders get access to this location for whatever expressive message they choose to communicate or facilitate.  This kind of selective control of, and access to, public property for private expressive purposes is constitutionally problematic.

Let us be clear:  This is not a situation in which the school here is passively opening up a public location and event to allow various private speakers to express their various messages.  Instead, the school (under plaintiffs’ argument) is authorizing a single private group, the cheerleaders, to decide (presumably by majority vote, although that is not clear) what messages get expressed on specific public property, without any guidance to limit the discretion they exercise in making such decisions.  No one gets access to have their message expressed on banners that the team will run through without the cheerleaders’ permission. The cheerleaders have complete discretionary control over the messages that may be communicated on banners leading the team in each and every football game.  The cheerleaders can express sectarian messages of only one faith while rejecting suggestions of messages of other faiths. They can embrace the virtues of one race and denigrate the worth of others.  They can express political messages for particular parties or candidates while rejecting messages from competing candidates or parties. They can adopt suggestions from their parents, friends, or pastors while ignoring messages proposed by people whose views they find objectionable.

This kind of unbridled latitude given to a select group of private citizens but denied to others to use public property resources for expressive purposes is inconsistent with free speech values and, indeed, quite possibly itself would violate the Free Speech Clause.  In other words, far from creating a free speech First Amendment right on the part of the cheerleaders, the school’s actions (under the cheerleaders’ characterization of them) here might themselves create a violation of the Free Speech Clause.

The Supreme Court has made it clear in Lakewood v. Plain Dealer Publishing Co. that giving unbridled discretion to government officials to decide who gets to speak in a public forum (limited or otherwise) is unconstitutional, because doing so raises “the specter of content and viewpoint discrimination.” That danger isn’t meaningfully avoided when government confers unbridled discretion to decide what messages are permitted to be expressed on public property upon a private group, rather than upon a government official.

Indeed, to return to the Establishment Clause, this is precisely the kind of unbridled discretion given to select private individuals that the Court rejected in Santa Fe v. Doe.  Giving the majority of the cheerleader squad the authority to determine whether scripture is displayed on banners, or prayers are offered before games, isn’t substantively different from allowing the majority of students to vote on whether a prayer will be offered at football games, the policy struck down in Santa Fe.  Reducing the number of students who get to make the decision doesn’t eliminate (and indeed may increase) the danger that minority viewpoints can (indeed, are likely to) be ignored by the students who are given the authority to determine what messages will be communicated.

Nor should it make any difference whether the group making the decision is selected on the basis of cheerleader athletic skills, or some other characteristic such as school spirit or how loud the students can yell. What is problematic about giving one group of private individuals the discretionary authority to decide what messages will be expressed on public property is that they may exercise that authority in content- and viewpoint-discriminatory ways.

Assessing The Two Clauses of the First Amendment Together

Of course, the school might avoid the restrictions imposed by the Free Speech Clause that we just described by accepting responsibility for the cheerleaders’ banners. Even though government cannot give unbridled discretion to a group of private individuals to control speech on public property, government can engage in its own speech, and in so doing necessarily engages in content or viewpoint discrimination when it expresses or sponsors its own message. The Free Speech Clause does not limit the state’s discretion to express its own messages on public property.

But if the school accepts responsibility for the religious messages on the banners, then it endorses religion in violation of the Establishment Clause principles that we described earlier.  And if (as the cheerleaders argue) the school has no constitutional responsibility for the messages on the banners (a proposition which we find less than convincing) then, in any event, the school would be seen as providing one group of private students discretionary control over access to public property for only those messages that the group favors. Giving that kind of discretionary, long-term control over access to public property to any private group undermines our constitutional commitments to open access to public property for minorities, religious or otherwise.

So under either characterization, it seems the only way for the school to obey the Constitution is to prohibit the religious display, which is why we think the cheerleaders could very likely lose their lawsuit if and when it winds its way up the appellate ladder.

November 3, 2012

Argument recap: A lawyer’s puzzle — The retroactive impact of Padilla v. Kentucky

Cross-posted from SCOTUSblog.

After a two-day delay because of the devastating storm Sandy, yesterday the Court heard oral arguments in Chaidez v. United States, which raises the issue of the retroactive application of Padilla v. Kentucky (2010).  In that blockbuster decision, the Court held that a Sixth Amendment ineffective assistance of counsel claim could be based on a defense counsel’s failure to inform his client of the possible immigration consequences of a plea agreement.

Jeffrey L. Fisher of the Stanford Supreme Court Litigation Clinic argued the case on behalf of petitioner Roselva Chaidez.  [Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to Chaidez, but the author is not affiliated with the firm.]  Michael Dreeben, Deputy Solicitor General, argued the case for the United States.

The argument was a lawyerly-like exercise in appellate advocacy, with the Justices skillfully probing the legal arguments concerning a collateral attack on a criminal conviction, as well as the policies implicated by the retroactive application of a decision of the Supreme Court.

The questioning of the Justices centered on the application of the Court’s 1989 decision in Teague v. Lane, in which it held that a new procedural rule could not be applied retroactively to a collateral attack on a criminal conviction.  Fisher contended that the post-Teague cases addressing with ineffective assistance of counsel claims did not create new rules – and neither did the Court in Padilla v. Kentucky.  Rather, the Court simply was applying the test outlined for ineffective assistance claims in Strickland v. Washington (1984).

The Chief Justice, with whom Justice Scalia seemed to agree, chimed in early to the effect that Padilla was surely a surprise – and a new rule — to the courts of appeals, which had unanimously rejected the position adopted by the Court.  Along these lines, Justice Kagan suggested that Padilla created a new rule by extending ineffective assistance claims to cover advice on possible collateral consequences of criminal convictions.   On a related note, Justice Alito seemed worried about how far Padilla extended in requiring counsel to raise possible collateral consequences of a criminal conviction, such as whether it might require discussion of the potential loss of a professional license.

Fisher emphasized that almost all of the lower court decisions contrary to Padilla predated the 1996 immigration reforms, which toughened the removal provisions of the U.S. immigration laws and made the removal consequences of a criminal conviction crystal clear.  Justice Kagan acknowledged that, even before 1996, a reasonable lawyer might discuss with a client the possible deportation consequences of a criminal conviction.  By 2001, the Court itself – in INS v. St. Cyr (2001) — observed in so many words that any competent lawyer would give his client advice on the deportation consequences of a criminal conviction in making a plea deal.

Arguing for the United States, Dreeben contended that Padilla in fact created a new rule and could not be applied retroactively by Chaidez in collaterally attacking her conviction.  Testing that assertion, Justice Sotomayor observed that before Padilla an attorney could not misrepresent the facts to the client, so that only part of Padilla was new.  She asked whether the government’s position was that changing professional norms on which an ineffective assistance claim was based would always constitute a “new rule.”  Justice Kennedy, mentioning Tom Paine (and also at other times throwing in references to MacPherson v. Buick Motor Co. and Erie Railroad Co. v. Tompkins), suggested that Padilla was based on “common sense.”  He acknowledged that the American Bar Association now requires defense counsel to both “determine,” and “advise” a client about, the immigration consequences of pleading guilty.  In addition, Federal Rule of Criminal Procedure 11 has been amended to require judges to advise defendants of the possible deportation consequences of a criminal conviction.

As one might guess of a former civil procedure professor, Justice Ginsburg questioned whether it mattered that the criminal conviction was federal.  Another former law professor, Justice Breyer, seemed to agree.  Unlike the state conviction at issue in Teague, she reasoned, there are no comity concerns presented in a case – such as this one – involving collateral review of a federal conviction.  She questioned Dreeben on whether Teague had ever been applied to federal convictions; he replied that it had not.  Justice Kennedy countered that, in addition to comity, repose was a concern to the Court in Teague.

Responding to the mention of repose as a policy issue, Dreeben suggested that Chaidez had waited too long to challenge the plea bargain.  However, she filed the coram nobis action shortly after the U.S. government instituted removal proceedings against her, thereby making the immigration consequences of her plea clear.

From my reading of the transcript, I found it hard to tell how the Court might ultimately rule, although I admittedly was more convinced before than after the argument that Chaidez would prevail.  The argument was not particularly “ideological” in nature; instead, the Justices genuinely seemed to be trying to grapple with the precedent and the practicalities of its ruling in the case at hand, as well as the policy questions implicated by the case.  Such careful deliberation of the individual case is precisely why it is difficult to predict how the Court will decide an immigration case.  Legal doctrine, rather than ideological tilt, seems to be of critical importance in the immigration decisions of the Roberts Court.