The US Court of Appeals for the Second Circuit issued a summary judgment on Jan. 30 in favor of a New York school district, which had barred the school’s co-president of student council, A.M., from using religious references in a speech given at an annual ceremony during the 2008-09 school year meant to encourage eighth graders as they go to high school.
When A.M. asked an English teacher to review the speech for punctuation and grammar, the teacher became concerned when she read the speech’s closing: “As we say our goodbyes and leave middle school behind, I say to you, may the LORD bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.” The principal asked A.M. to remove the sentence because “it sounded too religious,” according to court documents. A.M. took the matter up with the district’s superintendent, Mark Sposato, who agreed with the principal, saying A.M. could not speak at the ceremony unless she removed the sentence.
A.M. removed the sentence and spoke at the ceremony as planned. Then, she filed suit in a federal district court against the school district, claiming her First Amendment free speech rights had been violated. Earlier in January, the district court issued a summary judgment in favor of the school district, and A.M. appealed to the Second Circuit.
School-sponsored speech vs what students say on school grounds
How the First Amendment plays out in the schools when it comes to student speech is that students may express themselves freely and therefore include as many religious references as they want as long as the speech doesn’t occur at a school-sponsored activity.
If the speech occurs at a school-sponsored activity, such as a football game or assembly, it cannot endorse religion or non-religion or tend to favor one religion over another. References to God, in a general sense, are allowed, but A.M.’s speech, as shown here, referred to the “Lord,” a direct reference to Christian beliefs and an endorsement of Christianity over other religions.
Now, was this school-sponsored speech or just something A.M. was saying that happened to occur on school grounds? If it’s school-sponsored speech, it is governed by the Supreme Court case known as Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). If it’s speech by a student that just happens to occur on school grounds, it’s governed by Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
In the case of A.M. vs Taconic Hills Central School District
The district court ruled and the appellate court affirmed that A.M.’s speech was taking place at a school-sponsored event since it occurred at an assembly during the school day, parents were invited, and the school district maintained and paid for the auditorium.
The court therefore must apply the standards set forth in Hazelwood, which concluded that the district can exercise editorial control over A.M.’s speech “so long as their actions are reasonably related to legitimate pedagogical concerns.” The Hazelwood standard asks two questions:
- Is the restriction of speech based on content or on viewpoint?
- How strong is the state’s interest in restricting the speech?
We can answer the first question only by looking at the words and sentences of the speech in question. Here, it is fairly easy to see the A.M. was not expressing a personal viewpoint but rather conferring a Christian blessing on those in attendance. A.M. wasn’t stating a personal belief that Jesus was Lord; rather, A.M. was invoking the Holy Spirit to come upon people. If the district decides to restrict this speech, which it did, it is clearly based on the content of the speech, not on any personal viewpoint A.M. was expressing.
Schools can only restrict speech based on viewpoint if the state has an interest in preventing the speech that overrides the student’s interest in speaking. For example, the Montana Supreme Court held in 2010 that a valedictorian’s reference to her own religious beliefs in her graduation speech, when viewed according to Hazelwood, could not be restricted by the school district (see Griffith v. Butte Sch. Dist. No. 1). In that case, the court found that the speech did not appear to bear the imprimatur of the school and the restriction was therefore viewpoint-based and did not trump the student’s free speech rights.
Since the court in A.M.’s case determined that the restriction was based on content, the bar is a little lower for the school district. It’s not necessary for the district to prove it has an “overriding state interest” in restricting the speech, only that restricting the speech serves a “legitimate pedagogical concern.” That is, since the district was trying to avoid a conflict with the Establishment Clause of the First Amendment, they were justified in restricting the speech, since that interest constituted a legitimate pedagogical concern.
