\n\tIf you asked me to name the greatest rhetoric in American history, several examples would quickly come to mind. I would surely look to the stirring words
\n\tof the Declaration of Independence: \u201cWe hold these truths to be self-evident, that all men are created equal, . . . Or just as likely I would recall the
\n\tlast sentence of President Abraham Lincoln\u2019s second inaugural address: \u201cWith malice toward none; with charity for all; with firmness in the right, as God
\n\tgives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle,
\n\tand for his widow, and his orphan\u2014to do all which may achieve and cherish a just and a lasting peace among ourselves, and with all nations.\u201d\n<\/p>\n
\n\tOf course, for those of a certain generation, the words of Franklin Roosevelt\u2019s first inaugural address will resonate: \u201cSo, first of all, let me assert my
\n\tfirm belief that the only thing we have to fear is fear itself.\u201d\n<\/p>\n
\n\tWe know that an entire generation was inspired by President John F. Kennedy\u2019s inaugural address call to sacrifice and service with the words \u201cAnd so, my
\n\tfellow Americans: ask not what your country can do for you\u2014ask what you can do for your country.\u201d\n<\/p>\n
\nThose more familiar with the later part of the twentieth century remember President Ronald Reagan\u2019s address to the nation following the space shuttle\tChallenger<\/em> disaster, when he closed his speech with the memorable description of the lost astronauts: \u201cWe will never forget them, nor the last \n\tLofty and inspirational words all, and they have something else in common. They all are what lawyers call \u201cgovernment speech.\u201d This is a concept you have \n\tThat body of government speech might be said to include the following: banners made by Texas high school cheerleaders for the football team to run through \n\tThese banners do not exactly rise to the level of \u201cwe hold these truths to be self-evident\u201d in substance. And absent litigation, they were destined to be \n\tAfter getting a letter from an advocacy group, district superintendent Kevin Weldon was concerned enough about the banners to consult a lawyer. The lawyer \n\tThe lawyer and the superintendent had good reason to be cautious. In Texas, football and religion have a long and litigious history. In 2000 the Supreme \n\tThe key question in almost all of the school establishment clause cases is Who is speaking? Is the government speaking through the student, or is just the \n\tThere is good reason for this. The First Amendment places restrictions on the government that it doesn\u2019t place on private speakers. We would be appalled at \n\tSchools are a tricky place for the First Amendment. Ever since the 1969 case of Tinker v. Des Moines, Independent Community School District (<\/em>393 \n\tSchools are used to regulating (or at least attempting to regulate) almost every facet of what students say or do. In much the same way as the military \n\tWith this background and precedent it is easy to see how virtually any speech made at a school-sanctioned event (such as a football game) could be viewed \n\tThe cheerleaders argued that they created the banners on their own time, with their own materials, and that they alone determined the content. Which is to \n\tOf course, even assuming it was the girls\u2019 idea, there can be little doubt that had the banners contained a message the school did not approve of\u2014say, one \n\tBut just because government can prohibit some speech does not mean all speech is government speech. While making the wrong gesture at the president\u2019s \n\tWhich of course leads us back to whether the Texas cheerleaders\u2019 speech is closer to that of Dwight Eisenhower warning of a \u201cmilitary-industrial complex\u201d \n\tA Texas state court judge in October of 2012 said it was the latter and allowed the cheerleaders to continue. Football season is over, and whether this \n\tYou can feel some sympathy for the school superintendent. He has publicly claimed to be a Christian in his personal life and was only trying to follow the \n\tThis area should not be the minefield that it has become, but the courts and schools have conspired, however inadvertently, to make it so. Schools have a \n\tSchools have not helped this matter with their lack of respect for student First Amendment rights. At almost every turn schools advocate for more \n\tThe courts have been of little help. They recognize that schools and the population they serve require a level of supervision that we would not tolerate in \n\tIssues like this are of great symbolic but often little substantive importance to parties on all sides. Not being able to write Bible verses on a high \n\tThis of course doesn\u2019t mean the issue isn\u2019t important. We fight at the margins so we don\u2019t fight where it counts. Maybe these banners are OK at a football \n\tPerhaps the school can, or is even required to, prohibit the cheerleaders festooning their banners with Bible quotes, but it certainly cannot prohibit them \n\tBy muddling, and allowing to stay muddled, this important area of the law the Supreme Court is leaving the country vulnerable to fights over where If you asked me to name the greatest rhetoric in American history, several examples would quickly come to mind. I would surely look to the stirring words of the Declaration of Independence: \u201cWe hold these truths to be self-evident, that all men are created equal, . . . Or just as likely I would recall<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[197],"tags":[29],"class_list":["post-6206","post","type-post","status-publish","format-standard","hentry","category-march-april-2013","tag-march-april-2013"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6206","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6206"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6206\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6206"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6206"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6206"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n\ttime we saw them, this morning, as they prepared for their journey and waved goodbye and \u201cslipped the surly bonds of earth" to "touch the face of God."\n<\/p>\n
\n\tto go to law school to love. Except for the Declaration of Independence, an actual person delivered these words; yet these were government representatives
\n\tspeaking in an official capacity; thus government speech. The significance of governmental speech versus private speech can play out in any number of
\n\tways\u2014as group of high school girls recently found out.\n<\/p>\n
\n\temblazoned with Scripture quotes and references to God. Or not!\n<\/p>\n
\n\t\u201clittle noted, nor long remembered,\u201d as Abraham Lincoln once so movingly noted of real heroes; the banners were after all designed and created by teenage
\n\tgirls to be destroyed by teenage boys moments after their unfurling. But speech does not have to rival \u201cWe the People . . .\u201d in either pithiness or style
\n\tto be governmental speech.\n<\/p>\n
\n\tapparently advised him this practice could be viewed as violating the establishment clause of the First Amendment, and so the cheerleaders were told to
\n\tstop.\n<\/p>\n
\n\tCourt ruled in Santa Fe Independent School District v. Doe<\/em> (530 U.S. 290) that student-led prayer before a football game was unconstitutional.
\n\tFurther, in 2010 the federal appellate court over Texas ruled in a case brought by a cheerleader who was kicked off the cheerleading squad for not cheering
\n\tthat she was the \u201cmouthpiece\u201d of the school district.\n<\/p>\n
\n\tstudent speaking? It is a distinction that lawyers love to make. Normal people simply see a person talking and assume he or she is the speaker. Lawyers
\n\tlove to talk in terms of personal speech, governmental speech, corporate speech, you name it, lawyers like to categorize it.\n<\/p>\n
\n\tthe idea that a church could not decide who would occupy their pulpit based on their theological views. Yet we would be equally shocked if government put a
\n\tsimilar restriction on its pubic forums.\n<\/p>\n
\n\tU.S. 503) students have had some First Amendment rights in school. Yet, courts have never been comfortable giving them the same rights it does adults in
\n\tthe \u201cfree\u201d world. Make an obscene gesture as the president\u2019s motorcade drives by, and you will be lucky to get a second look from the Secret Service. Do
\n\tthat to the school principal walking by in the hallway, and you will likely encounter a different reaction, and the courts are unlikely to intervene.\n<\/p>\n
\n\tdefends democracy but doesn\u2019t practice it, schools teach about freedom of expression but don\u2019t allow it. Schools have even been allowed to suspend students
\n\tsimply because they did not like the content of a student\u2019s speech. This \u201cviewpoint discrimination\u201d is otherwise unheard of in First Amendment cases.\n<\/p>\n
\n\tas government and not private speech. The school does not turn over its PA system to just anyone to speak, and it does not direct its football team to
\n\tcrash through the banner of any group of students who show up.\n<\/p>\n
\n\tsay that the school did not tell them what to put on the banners, and therefore it was not the school speaking. In other words, the banners are no more
\n\tgovernmental speech than if the cheerleaders had created a Justin Bieber poster after school (or whatever high school girls do with their time when not
\n\tconspiring to violate the establishment clause.)\n<\/p>\n
\n\tsupporting the opposing team\u2014it would have quickly stopped that particular message. Or if instead of putting up Christian Bible texts, the girls had
\n\tdecided to mix it up and put quotes from the Quran on the banners, the school might have also sought to stop that practice on any number of grounds,
\n\tincluding not offending Muslims.\n<\/p>\n
\n\tmotorcade might not draw scrutiny, a sign advocating their soon and untimely death most certainly will. Yet no one argues that all of the law-abiding
\n\tprotestors are actually government agents just because the government exercises some veto over the their speech.\n<\/p>\n
\n\tas he left office (government speech) or Martin Luther King, Jr., declaring \u201cI have a dream\u201d (copyrighted private speech).\n<\/p>\n
\n\tcase will go further has yet to be seen. At one point, counsel for the school district indicated it had no desire to appeal the decision.\n<\/p>\n
\n\tlaw when he told the girls to change their banners. Why he thought stepping into the intersection of school, free speech, and religion was a good idea is
\n\tprobably a question he has asked himself more than once since making national headlines.\n<\/p>\n
\n\thard time recognizing the rights of students, and courts have done a poor job setting clear guidelines and creating standards that don\u2019t have lawyers
\n\tdisagreeing on the meaning of.\n<\/p>\n
\n\tbureaucratic control and less\u2014not more\u2014free speech. There seems to be something bred into the DNA of primary and secondary school administrators that
\n\tcompels them to prohibit and punish speech they don\u2019t like.\n<\/p>\n
\n\tthe rest of society; not unlike what we see in prisons. Put on top of that the absolute mess that is the Supreme Court\u2019s establishment clause
\n\tjurisprudence, and you have a recipe for confusion, inconsistency, and litigation.\n<\/p>\n
\n\tschool football banner hardly counts as being thrown into the lions\u2019 den. Similarly, even the most ardent atheist would be hard pressed to claim any real
\n\tinjury from being momentarily subjected to the scribbling of a group of teenage girls on colored paper of quotes from one of the most widely read and
\n\tquoted books in world.\n<\/p>\n
\n\tgame, but the school certainly can\u2019t put a banner over the entranceway saying \u201cThis is a Christian school for Christians.\u201d\n<\/p>\n
\n\tfrom going to church the next day or expressing their religious views over lunch in the cafeteria.\n<\/p>\n
\n\testablishment clause and free exercise clause disputes matter. Given the stakes, we deserve to have clear guidance, and the Supreme Court needs to do its
\n\tjob in this area.<\/p>\n","protected":false},"excerpt":{"rendered":"