The Florida legislature has approved and sent to the governor legislation that would allow students to deliver “inspirational messages” of their own choosing at school events that, according to critics, could include Satanic messages.
The bill is now in the hands of Gov. Rick Scott, who, according to the Orlando Sentinel, hasn’t promised to sign the bill, but he did say this: “I haven’t seen the bill, but I believe in Jesus Christ, and I believe individuals should have a right to say a prayer.”
It is unclear whether Scott knows that individuals already have a right to quietly and independently pray in public school.
During debate on the bill this week in the legislature, the Sentinel reported, one Democratic critic of the bill, Rep. Jeff Clemons, read from the “Aryan Satanic Manifesto.” When he asked Rep. Charles Van Zant, a Republican who has pushed the legislation for years, if he thought such passages should be labeled “inspirational,” Van Zant said: “That would be the students’ prerogative because of our constitutional freedom of speech.”
Civil liberties experts and other advocates say they are worried that the law will spark court challenges and could result in bullying. The Anti-Defamation League, for example, has called the law “unnecessary, religiously coercive, unconstitutional and costly to taxpayers.”
I asked First Amendment expert Charles C. Haynes for his reading on the law. Haynes is senior scholar at the First Amendment Center and director of the Religious Freedom Education Project at the Newseum.
Here’s what he said about the legislation in Florida and similar bills in other states:
The Florida legislation appears to be aimed at urging public schools to do what they already may do under current law.
In 2001, the 11th U.S. Circuit Court of Appeals in Adler v. Duval upheld a Florida school district policy that gave a forum for student speech within a graduation ceremony when prayer or religious speech might occur. The 2003 guidance from the U.S. Department of Education on “constitutionally protected prayer” follows that model. According to the DOE, “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.”
Many advocates of a strong separation of church and state argue that even under the circumstances described by the DOE, student prayers at school-sponsored events are still government prayers — and therefore unconstitutional.
But in the 11th Circuit, at least, it appears legal for student speakers to offer a prayer — if they retain “primary control” over their speech.
Advocates of prayer at school events see the 11th Circuit decision (which was denied cert by the U.S. Supreme Court) and the DOE guidance as openings to advance their cause. Texas, Tennessee and other states have passed laws that instruct school districts to let students (chosen by neutral criteria) say what they want. The Florida law is careful to follow the outlines of what may be allowed under current law.
Of course, legislators understand that this “free speech” forum is a risky business. By creating a limited open forum for student speech, the school may have to accept almost anything the student wishes to say.
That’s why in Texas, the legislature specified the pool of students that speakers could be drawn from (team captains, student government leaders, etc.) — a limitation of dubious constitutionality. Florida lawmakers are hedging their bets by specifying “inspirational messages,” no doubt in the hope that the selected students will take the strong hint and say a prayer. Whether the courts will agree that requiring that the speech be “inspirational” is truly a forum for free student expression — or a ruse to get prayer back at school events — remains to be seen.
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