- The Washington Times - Thursday, April 13, 2000

When I recently received a letter asking why I was involved in a lawsuit involving New Mexico, I began to appreciate the potential for misunderstanding about the U.S. Supreme Court case involving the Santa Fe Independent School District, just 40 miles southeast of Houston.

While at least one person thought the case involved Santa Fe, N.M., others have thought that the case concerned prayers in the classroom. Neither is correct. Doe vs. Santa Fe ISD concerns whether school districts must censor student-led, student-initiated messages which may include prayer during pre-game ceremonies at football games. In other words, the case is about freedom of speech, including religious speech. That is why I, together with Gov. George W. Bush and seven other states, filed a "friend of the court" brief with the United States Supreme Court, supporting Santa Fe ISD's position that its student message policy is constitutional, and seeking to overturn a decision that banned the policy by the Fifth U.S. Circuit Court of Appeals.

And, that is why I personally argued this case before the U.S. Supreme Court March 29. This has national significance. The rights of students in Texas, and, indeed, of all Americans are at stake.

Certainly, we must ensure that public schools respect the separation of church and state. At the same time, there are more than 1,000 public school districts in Texas that must deal with questions about what students can or can't do with regard to religious expression outside the classroom.

And school officials, who must adopt policies to deal with this issue, should not have to guess. The law respecting the proper balance between the separation of church and state on one hand, and free speech on the other, should be clear enough for school officials to apply.

School boards find themselves defending lawsuits while trying to navigate the difficult passage between these two important constitutional principles. I believe that school districts should spend scarce tax dollars on education, not litigation. Thus, my purpose in representing Texas before the U.S. Supreme Court is to seek clarification on these important legal issues. My goal is to ensure that policies of Texas school districts are constitutional.

I believe the Santa Fe ISD policy neither promotes nor inhibits religion, while protecting the free speech rights of students. It doesn't require prayer, but it doesn't prohibit prayer. It neither favors, nor disfavors religion, which is the neutrality mandated by the Supreme Court's decisions.

The Santa Fe ISD policy on pre-game ceremonies at football games reads:

"The (Santa Fe ISD) board has chosen to permit students to deliver a brief invocation and/or message 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 the advice and direction of the high school principal, each spring, the high school student body shall conduct an election 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 volunteers to deliver the statement 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." Obviously, the Santa Fe ISD is not injecting itself into the process. Clearly, this is not a government-sponsored message, but rather a message chosen by the student alone. Surely, this is a constitutional process unless government is required to be overtly hostile to private religious speech, which it should not be. Nor, is the test for free speech whether a particular message makes everyone comfortable.

Such is the price we all pay for living in a country that values free expression and the free flow of ideas. The Santa Fe ISD students have a constitutionally protected right to free speech, including the right to offer a prayer before football games, as long as school officials are not involved in the activity. I support that right and I believe other Texans do, too.

John Cornyn is attorney general of Texas.

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