Federal appeals panel: California district can bar religious graduation speeches

Thursday, October 5, 2000

A California school district did not violate the First Amendment
rights of two students by barring them from giving proselytizing speeches at
their high school graduation, a federal appeals court panel has ruled.

Ferrin Cole and Chris Niemeyer, 1998 graduates of Oroville High
School, had sued the Oroville Union High School District and school officials
after they were not allowed to speak at their graduation. School officials
refused to allow Cole to give a sectarian invocation or Niemeyer to give a
sectarian, proselytizing valedictory speech at the graduation.

Since 1985, the school district has had a policy requiring faculty
review of all student graduation speeches and invocations. Over the years, the
district had approved speeches as long as they were not offensive or

After reviewing Cole and Niemeyer’s speeches, faculty advisors told
the students to make their statements “nondenominational” and inclusive of all

When they refused to change the content of their messages, Cole and
Niemeyer were not allowed to speak at the graduation.

The students sued in federal court in June 1998, seeking a temporary
restraining order just before the graduation. However, the district court
denied their motion for lack of time to consider the difficult issues. In 1999,
the plaintiffs amended their suit to include Niemeyer’s younger brother Jason,
who had been chosen to give a valedictory speech at the school’s 1999

In June 1999, District Judge Lawrence K. Karlton ruled in favor of the
school district, writing that “the Free Exercise Clause does not require
defendants to afford plaintiff a podium so that he can testify to his faith in
God before a captive audience.”

On appeal, a three-judge panel of the 9th U.S. Circuit Court of
Appeals affirmed in Cole v. Oroville Union High
School District

“Even assuming the Oroville graduation ceremony was a public or
limited public forum, the District’s refusal to allow the students to deliver a
sectarian speech or prayer as part of the graduation was necessary to avoid
violating the Establishment Clause under the principles applied in Santa Fe
Independent School District v. Doe,” the panel wrote in its Oct. 2 opinion.

In the Santa Fe case, the
U.S. Supreme Court ruled last June that Texas public schools may not begin
football games with organized prayer, even when recited by a student. Justice
John Paul Stevens, who authored the high court’s majority opinion, wrote:
“School sponsorship of a religious message is impermissible because it sends
the ancillary message to members of the audience who are nonadherents that they
are outsiders, not full members of the political community.”

The 9th Circuit, applying the same reasoning, concluded that
disallowing the sectarian and proselytizing speeches “was necessary to avoid an
Establishment Clause violation.”

“The case is significant because it is the first to apply the Santa Fe
case to a valedictorian speech,” said Christian M. Keiner, the school
district’s attorney. “Proselytizing speech is as much religious expression as
prayer and that’s an important clarification in the law.”

Calls to the plaintiffs’ attorney were not returned.

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