When do rights become wrongs?

By Christina Littlefield

Sunday, July 9, 2006 | 7:38 a.m.

The First Amendment forbids the government from endorsing religion but requires the government to protect religious speech.

The tightrope places school officials in a tough spot when organizing graduations and other school-sponsored events. U.S. Supreme Court rulings have struck down school-endorsed prayer but allow students to express their faith under specific circumstances. The lower courts remain divided on what circumstances will pass constitutional muster.

Supreme Court decisions:

Lee et al. v. Weisman, June 24, 1992

Justices didn't object to prayer per se, but that the school principal specifically chose a member of the clergy, invited him to pray and gave the rabbi instructions on how to make the prayer inclusive of other faiths.

In a concurring opinion, Justice David Souter laid out a policy by which prayer or religious speech could occur in a graduation. "If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would be harder to attribute an endorsement of religion to the State."

Santa Fe Independent School Dist. v. Doe, 2000

Justices ruled 6-3 that the school was too involved in the process and was encouraging public prayer before a captive, student audience, a violation of the Establishment clause.

Divided circuits:

Adler v. Duval County School Board, 2002, 11th Circuit and Doe v. Nelson, 2003, 8th Circuit

The 9th Circuit decisions appear to give little leeway for a situation in which religious speech by individual students would be protected during school-sponsored events. Clark County falls within the 9th Circuit's jurisdiction.

Picture American religious liberty as a two-sided coin:

On one side is the government's responsibility to steer clear of religion, to not endorse any one faith or coerce citizens to follow a religious practice.

On the other side is the government's responsibility to protect the rights of individuals to freely express their faith.

Brittany McComb doesn't like the way the coin landed on her graduation day. She was valedictorian at Foothill High School and was prepared to tell classmates the source of her success.

But school officials literally pulled the microphone plug during her June 15 graduation speech because, they said, it veered too far into religious territory.

The decision has renewed debate about the proper place of religion in schools and the rights of students to free speech.

It is a debate that has divided courts and in which the ACLU - which might have been expected to come down on the side of free speech - supports the Clark County School District for keeping religion at arm's length.

The issue won't soon shrivel away. The Rutherford Institute, a conservative legal aid and education organization based in Virginia, is drafting a complaint against the School District in hopes of getting the U.S. Supreme Court to weigh in.

The usually meek 18-year-old McComb has become a bold pitchwoman for free speech and religious liberty, appearing on the "Today Show" and Fox News' "Hannity and Colmes" the week after graduation.

To conservatives, she's a victim of the left's push to eradicate God from all public life. To liberals, she's a tool of the right's attempts to push their brand of Christian fundamentalism.

If valedictorian speeches are all about giving parting advice to classmates, McComb said, her remarks would have been remiss if she didn't tell the secret of her success - her relationship with Jesus Christ.

"If you have a chance to speak to all these people," McComb said, "are you going to speak about 'hey we're finally here, I can't believe we made it,' or are you going to speak about something that has radically changed your life?"

McComb's decision may trigger a new test case to clarify a murky and controversial issue in First Amendment law. But she'll have to take her case all the way to the Supreme Court to find out.

The balancing act required by the Establishment clause in the First Amendment requires public school officials to walk a tightrope, said Charles Haynes, senior scholar at the Freedom Forum's First Amendment Center, a nonprofit education center in Washington, D.C., that represents more middle-of-the-road views on Constitutional law.

The First Amendment clause forbids the government from establishing a national church, endorsing or showing favor to any one faith, or coercing citizens into participating in a religious practice. At the same time, the clause requires government to protect the rights of citizens to freely practice their religious beliefs.

Whereas the Supreme Court has upheld prayer before legislative sessions and other public bodies as "tolerable acknowledgment of beliefs widely held among the people of this country," justices have repeatedly struck down school-led prayers and religious speech. The stakes are higher for schools because officials are dealing with young, impressionable minds, minds they hold captive in the classroom or at school events.

Supreme Court decisions have struck down school-initiated involvement in prayer but left the door open for individual students to voluntarily pray or even proselytize in school. The murky area of the law is whether students have the right to such speech in school-sponsored forums.

In major decisions, Supreme Court justices side on students' rights to religious speech but under strict guidelines, said Haynes and Douglas Kmiec, a nationally renowned constitutional scholar and Pepperdine University School of Law professor.

The court has generally advised that if a student speaker is selected based on neutral, secular criteria, such as having the highest GPA, and that student retains control over the speech's content, the remarks "may not be restricted because of religious (or anti-religious) guidelines."

Coupled with a disclaimer that speech is student-initiated and does not represent the views of the school district or its employees, such a policy gets school officials off the hook for violating the Establishment clause while still allowing students to express their religious faith if they so choose, Haynes, Kmiec and other lawyers said.

That's the balance suggested by U.S. Education Department guidelines, and it was that policy that Clark County School District officials adopted in 2003. It is also the policy lower U.S. appeals courts have upheld in the 11th and 8th Circuits, seated in Atlanta and St. Louis, respectively.

But Clark County School District officials must answer to the U.S. Court of Appeals for the 9th Circuit. That San Francisco-based court ruled in 2000 and 2003 cases that school districts have the obligation to censor student speeches for proselytizing.

In particular, school officials and the 9th Circuit justices targeted speech in which students named Jesus Christ and Christian tenants, and which invited other students to follow the Christian faith.

By involving themselves in the content of the speech, the court held, school officials could no longer claim that the speech was student-initiated, and at that point they were obligated to halt it or risk violating the Establishment clause. By allowing students to proselytize from the podium, school officials would be requiring everyone at the graduation to participate in a religious practice they may not agree with, justices wrote.

Justices also questioned whether student speech at such events could ever be construed as not school-sponsored, when the school was selecting the speakers and hosting and paying for the event.

It was the 9th Circuit ruling that Clark County School District officials said they were following when they first edited McComb's speech two weeks before graduation and then turned off her microphone mid-sentence as she approached the off-limits language.

"God's love is so great that he gave His only son up . . ." McComb was saying when, in mid-sentence, the microphone went dead. She finished the sentence without amplification: " to an excruciating death on a cross so his blood would cover all our shortcomings and provide for us a way to heaven in accepting this grace."

In vetting graduation speeches, a common practice, school authorities limit a student's right to free speech, said School District lawyer Bill Hoffman. Officials find themselves on a slippery slope in defining what crosses the line into proselytizing. There is no clear definition from the 9th Circuit, and Hoffman said he relied on examples cited in court cases when evaluating McComb's speech.

"There's no question that sometimes it is a difficult call to figure out when comments become proselytizing," Hoffman said.

"Sometimes it is obvious and sometimes it is not obvious."

In her approved speech, McComb talked about how God filled a hole in her heart that her accomplishments couldn't. Hoffman axed out of her text specific references to Jesus and his death on the cross, which McComb said showed God's love for her and all of mankind.

McComb thought it pointless to argue with her principal, but her father's lawyer questioned the School District, which answered with a fax referencing the 9th Circuit court case. Under pressure to turn in the final version of her speech, McComb said she agreed to the deletions.

But as graduation drew near, McComb couldn't bring herself to give the chopped version of the speech that, she said, reflected only a half-truth of who she is. She wrestled with the decision for weeks, seeking input from her family and friends. After prayer, she decided to present her full speech.

Said McComb, who was raised in a Christian family and personally decided to follow the faith at age 7: "I was just being true to who I am and true to who I have become, who God has made me to be."

The American Civil Liberties Union of Nevada supported the censorship. "The school has the right and responsibility to vet and approve the speech so it is aimed at the proper function of the graduation, which is the celebration of all people," said ACLU lawyer Allen Lichtenstein.

Lichtenstein does not see any situation in which graduation speeches could ever be fully protected by the First Amendment because the school is responsible for the event.

No one, Lichtenstein contends, would allow students to say whatever they want at a school-sponsored event. He wonders if people would be as upset if McComb was silenced for promoting the Wiccan faith or if she made a political speech condemning the war in Iraq.

The Rutherford Institute hopes taking McComb's case to court will help clarify the law and overturn the 9th Circuit rulings.

John Whitehead, Rutherford's president and founder, believes the School District has violated McComb's rights, and that the 9th Circuit rulings have lost sight of the responsibility of schools to protect students' rights to free expression.

Haynes and Kmiec agreed, but said the Clark County School District was bound by the 9th Circuit's decisions. It's also unlikely that courts will challenge school officials' rights to censor the content of student speeches. For school officials to adopt the Supreme Court's guidelines on religious speech - by trusting student speeches without reviewing them - is a risk many don't want to take.

Supreme Court justices have declined to review other lower court cases, but with multiple cases seeking review, justices could decide to weigh in. McComb's case could be the one they choose.