In a ruling that breaks with the prevailing approach of federal courts, Montana’s highest court has limited the ability of public schools to dictate what students can say in addressing graduation ceremonies.
The Montana Supreme Court’s 6-1 ruling in Griffith v. Butte School District makes it more likely that the issue will command the U.S. Supreme Court’s attention.
The case — brought by a Butte High School senior who was prevented from delivering a speech professing her Christian faith — presented a simple question that courts generally get wrong: Are a student graduation speaker’s words attributable to the school as “curricular” speech?
The case began in May 2008, when Renee Griffith was invited to give one of her school’s valedictory speeches at graduation. Griffith prepared a draft in which she described the value of learning perseverance in the face of adversity, adding, “I didn’t let fear keep me from sharing Christ and His joy with those around me.” Three sentences of the speech referred to Christ or to God.
Principal John Metz learned of Griffith’s plans and conveyed orders to make the text more generic because, under the school’s standards, “religious references were not permitted in graduation speeches.” When Griffith refused to remove the references to Christianity, she was yanked off the program.
Griffith brought a First Amendment challenge, but lost at the trial court on the grounds that the speech was “curricular,” and therefore governed by the permissive censorship standard set forth by the Supreme Court in Hazelwood School District v. Kuhlmeier. But the appeals court had no difficulty concluding otherwise. The court carefully examined the circumstances surrounding the graduation ceremony, and declined to apply Hazelwood, finding that Griffith’s speech was unmistakably her personal expression and not that of the school:
[N]o objectively reasonable observer could perceive that Griffith’s religious references bore the imprimatur of the School District. In fact, the School District explicitly dissociated itself from Griffith’s speech by printing [an] unambiguous Disclaimer in each graduation program … . [T]he second paragraph of the printed Disclaimer avows that any religious expression by students is not endorsed by the School District and then goes on to clarify that individuals ‘have the freedom to express their individual political, social or religious views, for this is the essence of education.’
The Griffith ruling is consistent with the U.S. Department of Education’s 2003 guidance as to when student-initiated religious expression is permissible in public schools. According to the Department:
Where student speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. By contrast, where school officials determine or substantially control the content of what is expressed, such speech is attributable to the school and may not include prayer or other specifically religious (or anti-religious) content.
Griffith is a straightforward and faithful application of Hazelwood — which should not be newsworthy, but is.
Federal courts typically have categorized graduation addresses as Hazelwood speech and deferred to administrators’ rationale of avoiding association with overtly religious messages appearing to endorse a particular faith. That was the approach the Tenth Circuit U.S. Court of Appeals took in its May 2009 ruling in Corder v. Lewis Palmer School District, a factually similar case involving a Colorado student’s valedictory speech.
Because the Corder court concluded that a graduation address is “so closely connected to the school that it appears the school is somehow sponsoring the speech,” the court applied the censorship-friendly Hazelwood standard. As a result, the court found no First Amendment violation in the school’s decision to discipline a student for a religious-themed graduation speech and force her to publish an apology dictated by the principal.
Civil-rights litigators typically bring their cases in federal rather than state court, believing they’ll benefit from judges who have experience applying federal law and the safety of lifetime tenure to insulate them against public backlash. But in this instance, the state court’s approach plainly is more faithful to Supreme Court precedent.
In a key, and oft-overlooked, passage in Hazelwood, the Court defined “curricular” speech as speech that is “supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”
Leaving aside the first part of the inquiry (“supervised by faculty members”), as to which reasonable minds might differ, there would seem to be no room for disagreement that a graduation speech is not designed as a teaching vehicle. Attendance at graduation is optional (and indeed, schools treat participation in the ceremony as a privilege and not an entitlement). A student could decline the opportunity to give the valedictory speech and suffer no consequences. No grades are assigned. The audience consists primarily of non-students. Schools offer journalism and drama as academic courses, but none offers a class in “graduation.”
None of these factors suggests graduation is a “curricular” activity, and if it is not, then Hazelwood is the wrong constitutional measuring stick. Instead, a school should be prohibited from overriding students’ choice of material except in the narrow circumstances recognized in Tinker v. Des Moines Independent Community School District — where action is necessary to prevent an imminent violation of the law or the substantial disruption of school functions.
This point has been lost for the most part by federal judges straining the facts and the law to find some reason for schools to win and students to lose. (To show how desperately the Corder court was trying to prop up the school’s case, one of the main factors establishing the “curricular” connection between the graduation speech and the school was that a teacher escorted the student to the principal’s office to be disciplined. In other words, it is the Tenth Circuit’s view that the method by which the school chooses to punish speech can itself establish the legitimacy of the punishment.)
Of course, it’s not just religious themes that invite censorship — any deviation from the safe-and-scripted can be bait for the censors. And that is why the frequent court battles over religious graduation speeches have broader consequences impacting all future speakers. The authority to censor speech about God implies authority to censor for any halfway-reasonable justification, which imperils any speech that principals deem critical or controversial.
Griffith and other graduation-speech cases raise important philosophical questions about just how much individual schools should be allowed to dictate the level of First Amendment protection that student activities receive.
In Hazelwood, the Supreme Court found it conclusive that — even though the school district had a pro-free-speech policy on the books — the policy had long gone ignored. Instead, the school had routinely interjected itself into the students’ editorial judgments. Consequently, the Court found no unambiguous intent to operate the Hazelwood East newspaper as a student-run forum for free expression as opposed to a teacher-run curricular vehicle.
The paradox is self-evident: a school that deals forthrightly with students forfeits a degree of control, while a school that acts duplicitously retains greater managerial discretion.
In the Griffith case, the school district did all of the right things. It enacted a written policy against censoring students’ graduation remarks, and it required a disclaimer in each school’s graduation program that speeches are “the private expression of the individual participants” and not the school. In the Corder case, the school district made less public effort to distance itself from the speakers’ remarks.
But should schools be able to game the First Amendment so easily? What matters under Hazelwood is whether the message would be mistaken by reasonable listeners for an official declaration of the school — and the law is quite clear that students are not “agents” of their schools. Absent any evidence that the speaker held herself out as an official representative of the school, a student’s words ordinarily should be treated under the law as they are treated by sensible people in the audience.
When the Supreme Court refused last spring to hear the appeal of an Everett, Wash., student prevented from playing an instrumental version of “Ave Maria” at her high school graduation ceremony, Justice Samuel Alito took the unusual step of publishing a detailed opinion warning of the consequences.
The decision not to review a lower-court ruling dismissing the student’s First Amendment challenge, Alito cautioned, “may provide the basis for wide-ranging censorship of student speech that expresses controversial ideas.”
The proliferation of rulings taking irreconcilable views of graduation ceremonies will make Alito’s argument much easier the next time a case presents itself for review.