SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, individually and as next friend for her minor children, et al.
No. 99-62.
Argued March 29, 2000 —
Decided June 19, 2000
Stevens, J., delivered the opinion of the Court, in which O’CONNOR, Kennedy, Sotjter, Ginsbtjrg, and Breyer, JJ., joined. Eehnquist, C. J., filed a dissenting opinion, in which Scaua and Thomas, JJ., joined, post, p. 318.
Jay Alan Sekulow argued the cause for petitioner. With him on the briefs were Colby M. May, James M. Henderson, Sr., Mark N. Troobnick, Walter M. Weber, Paul D. Clement, John G. Stepanovich, Thomas P. Monaghan, Stuart J. Roth, John P. Tuskey, Joel H. Thornton, David A. Cortman, and Kelly Shackelford.
John Comyn, Attorney General of Texas, argued the cause for the State of Texas et al. as amici curiae urging reversal. With him on the brief were Andy Taylor, First Assistant Attorney General, Linda S. Eads, Deputy Attorney General, Gregory S. Coleman, Solicitor General, Julie Caruthers Parsley, Deputy Solicitor General, and Meredith B. Parenti, Assistant Solicitor General.
Anthony P. Griffin argued the cause for respondents. With him on the briefs were Douglas haycock and Steven R. Shapiro.
Briefs of amici curiae urging reversal were filed for the Christian Legal Society by Steffen N. Johnson, Stephen M. Shapiro, Michael W. McConnell, and Kimberlee W. Colby; for Liberty Counsel et al. by Mathew D. Staver and Jerry Falwell, Jr.; for the Northstar Legal Center by Jordan W. Lorence; for Spearman Independent School District et al. by Roger D. Hepworth; for the Texas Association of School Boards Legal Assistance Fund by David M. Feldman and Myra C. Schexnayder; for the Texas Justice Foundation et al. by Linda L. Schlueter; for Senator James M. Inhofe et al. by Barry G. Hodge; for Congressman Steve Largent et al. by Brett M. Kavanaugh; for Marian Ward et al. by Kelly J. Coghlan; and for Texas Public School Students et al. by John L. Carter.
Briefs of amici curiae urging affirmance were filed for the American Jewish Congress et al. by Walter E. Dellinger and Marc D. Stern; and for the Baptist Joint Committee on Public Affairs et al. by Derek H. Davis and Melissa Rogers.
Briefs of amici curiae were filed for the Rutherford Institute by John W. Whitehead, Steven H. Aden, and James A Hayes, Jr.; and for the Student Press Law Center by Richard A Simpson and S. Mark Goodman.
Justice Stevens
delivered the opinion of the Court.
Prior to 1995, the Santa Fe High School student who occupied the school’s elective office of student douneil chaplain delivered a prayer over the public address system before each varsity football game for the entire season. This practice, along with others, was challenged in District Court as a violation of the Establishment Clause of the First Amendment. While these proceedings were pending in the District Court, the school district adopted a different policy that permits, but does not require, prayer initiated and led by a student at all home games. The District Court entered an order modifying that policy to permit only nonseetarian, non-proselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. We granted the school district’s petition for certiorari to review that holding.
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The Santa Fe Independent School District (District) is a political subdivision of the State of Texas, responsible for the education of more than 4,000 students in a small community in the southern part of the State. The District includes the Santa Fe High School, two primary schools, an intermediate school and the junior high school. Respondents are two sets of current or former students and their respective mothers. One family is Mormon and the other is Catholic. The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment.
Respondents commenced this action in April 1995 and moved for a temporary restraining order to prevent the District from violating the Establishment Clause at the imminent graduation exercises. In their complaint the Does alleged that the District had engaged in several proselytizing practices, such as promoting attendance at a Baptist revival meeting, encouraging membership in religious clubs, chastising children who held minority religious beliefs, and distributing Gideon Bibles on school premises. They also alleged that the District allowed students to read Christian invocations and benedictions from the stage at graduation ceremonies, and to deliver overtly Christian prayers over the public address system at home football games.
On May 10, 1995, the District Court entered an interim order addressing a number of different issues. With respect to the impending graduation, the order provided that “non-denominational prayer” consisting of “an invocation and/or benediction” could be presented by a senior student or students selected by members of the graduating class. The text of the prayer was to be determined by the students, without scrutiny or preapproval by school officials. References to particular religious figures “such as Mohammed, Jesus, Buddha, or the like” would be permitted “as long as the general thrust of the prayer is non-proselytizing.” App. 32.
In response to that portion of the order, the District adopted a series of policies over several months dealing with prayer at school functions. The policies enacted in May and July for graduation ceremonies provided the format for the August and October policies for football games. The May policy provided:
“ ‘The board has chosen to permit the graduating senior class, with the advice and counsel of the senior class principal or designee, to elect by secret ballot to choose whether an invocation and benediction shall be part of the graduation exercise. If so chosen the class shall elect by secret ballot, from a list of student volunteers, students to deliver nonsectarian, nonproselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies.’ ” 168 F. 3d 806,811 (CA5 1999) (emphasis deleted).
The parties stipulated that after this policy was adopted, “the senior class held an election to determine whether to have an invocation and benediction at the commencement [and that the] class voted, by secret ballot, to include prayer at the high school graduation.” App. 52. In a second vote the class elected two seniors to deliver the invocation and benediction.
In July, the District enacted another policy eliminating the requirement that invocations and benedictions be “nonsectarian and nonproselytising,” but also providing that if the District were to be enjoined from enforcing that policy, the May policy would automatically become effective.
The August policy, which was titled “Prayer at Football Games,” was similar to the July policy for graduations. It also authorized two student elections, the first to determine whether “invocations” should be delivered, and the second to select the spokesperson to deliver them. Like the July policy, it contained two parts, an initial statement that omitted any requirement that the content of the invocation be “nonsectarian and nonproselytising,” and a fallback provision that automatically added that limitation if the preferred policy should be enjoined. On August 31, 1995, according to the parties’ stipulation: “[T]he district’s high school students voted to determine whether a student would deliver prayer at varsity football games.... The students chose to allow a student to say a prayer at football games.” Id., at 65. A week later, in a separate election, they selected a student “to deliver the prayer at varsity football games.” Id., at 66.
The final policy (October policy) is essentially the same as the August policy, though it omits the word “prayer” from its title, and refers to “messages” and “statements” as well as “invocations.” It is the validity of that policy that is before us.
The District Court did enter an order precluding enforcement of the first, open-ended policy. Relying on our decision in Lee v. Weisman, 505 U. S. 577 (1992), it held that the school’s “action must not 'coerce anyone to support or participate in’ a religious exercise.” App. to Pet. for Cert. E7. Applying that test, it concluded that the graduation prayers appealed “to distinctively Christian beliefs,” and that delivering a prayer “over the school’s public address system prior to each football and baseball game coerces student participation in religious events.” Both parties appealed, the District contending that the enjoined portion of the October policy was permissible and the Does contending that both alternatives violated the Establishment Clause. The Court of Appeals majority agreed with the Does.
The decision of the Court of Appeals followed Fifth Circuit precedent that had announced two rules. In Jones v. Clear Creek Independent School Dist., 977 F. 2d 963 (1992), that court held that student-led prayer that was approved by a vote of the students and was nonseetarian and nonproselytiz-ing was permissible at high school graduation ceremonies. On the other hand, in later cases the Fifth Circuit made it clear that the Clear Creek rule applied only to high school graduations and that school-encouraged prayer was constitutionally impermissible at school-related sporting events. Thus, in Doe v. Duncanville Independent School Dist., 70 F. 3d 402 (1995), it had described a high school graduation as “a significant, once in-a-lifetime event” to be contrasted with athletic events in “a setting that is far less solemn and extraordinary.” Id., at 406-407.
In its opinion in this ease, the Court of Appeals explained:
“The controlling feature here is the same as in Dun-canville: The prayers are to be delivered at football games — hardly the sober type of annual event that can be appropriately solemnized with prayer. The distinction to which [the District] points is simply one without difference. Regardless of whether the prayers are selected by vote or spontaneously initiated at these frequently-recurring, informal, school-sponsored events, school officials are present and have the authority to stop the prayers. Thus, as we indicated in Duncan-ville, our decision in Clear Creek II hinged on the singular context and singularly serious nature of a graduation ceremony. Outside that nurturing context, a Clear Creek Prayer Policy cannot survive. We therefore reverse the district court’s holding that [the District’s] alternative Clear Creek Prayer Policy can be extended to football games, irrespective of the presence of the nonseetarian, nonproselytizing restrictions.” 168 F. 3d, at 823.
The dissenting judge rejected the majority’s distinction between graduation ceremonies and football games. In his opinion the District’s October policy created a limited public forum that had a secular purpose and provided neutral accommodation of noncoereed, private, religious speech.
We granted the District’s petition for certiorari, limited to the following question: “Whether petitioner’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause.” 528 U. S. 1002 (1999). We conclude, as did the Court of Appeals, that it does.
I-H HH
The first Clause in the First Amendment to the Federal Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Fourteenth Amendment imposes those substantive limitations on the legislative power of the States and their political subdivisions. Wallace v. Jaffree, 472 U. S. 38, 49-50 (1985). In Lee v. Weisman, 505 U. S. 577 (1992), we held that a prayer delivered by a rabbi at a middle school graduation ceremony violated that Clause. Although this case involves student prayer at a different type of school function, our analysis is properly guided by the principles that we endorsed in Lee.
As we held in that ease:
“The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’” Id., at 587 (citations omitted) (quoting Lynch v. Donnelly, 465 U. S. 668, 678 (1984)).
In this case the District first argues that this principle is inapplicable to its October policy- because the messages are private student speech, not public speech. It reminds us that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and •private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 250 (1990) (opinion of O’Connor, J.). We certainly agree with that distinction, but we are not persuaded that the pregame invocations should be regarded as “private speech.”
These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events. Of course, not every message delivered under such circumstances is the government’s own. We have held, for example, that an individual’s contribution to a government-created forum was not government speech. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). Although the District relies heavily on Rosenberger and similar cases involving such forums, it is clear that the pregame ceremony is not the type of forum discussed in those cases. The Santa Fe school officials simply do not “evince either ‘by policy or by practice/ any intent to open the [pregame ceremony] to ‘indiscriminate use/ ... by the student body generally.” Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270 (1988) (quoting Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 47 (1983)). Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student’s message, see infra, at 306-307, 309. By comparison, in Perry we rejected a claim that the school had created a limited public forum in its school mail system despite the fact that it had allowed far more speakers to address a much broader range of topics than the policy at issue here. As we concluded in Perry, “selective access does not transform government property into a public forum.” 460 U. S., at 47.
Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, Santa Fe’s student election system ensures that only those messages deemed “appropriate” under the District’s policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced.
Recently, in Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 (2000), we explained why student elections that determine, by majority vote, which expressive activities shall receive or not receive school benefits are constitutionally problematic:
“To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is controlling here.” Id., at 285.
Like the student referendum for funding in Southworth, this student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority. Because “fundamental rights may not be submitted to vote; they depend on the outcome of no elections,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943), the District’s elections are insufficient safeguards of diverse student speech.
In Lee, the school district made the related argument that its policy of endorsing only “civic or nonsectarian” prayer was acceptable because it minimized the intrusion on the audience as a whole. We rejected that claim by explaining that such a majoritarian policy “does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront.” 505 U. S., at 594. Similarly, while Santa Fe’s majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense.
Moreover, the District has failed to divorce itself from the religious content in the invocations. It has not succeeded in doing so, either by claiming that its policy is “‘one of neutrality rather than endorsement’” or by characterizing the individual student as the “circuit-breaker” in the process. Contrary to the District’s repeated assertions that it has adopted a “hands-off” approach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion. In this case, as we found in Lee, the “degree of school involvement” makes it clear that the pregame prayers bear “the imprint of the State and thus put school-age children who objected in an untenable position.” Id., at 590.
The District has attempted to disentangle itself from the religious messages by developing the two-step student election process. The text of the October policy, however, exposes the extent of the school’s entanglement. The elections take place at all only because the school “board has chosen to 'permit students to deliver a brief invocation and/or message.” App. 104 (emphasis added). The elections thus “shall” be conducted “by the high school student council” and “[u)pon advice and direction of the high school principal.” Id., at 104-105. The decision whether to deliver a message is first made by majority vote of the entire student body, followed by a choice of the speaker in a separate, similar majority election. Even though the particular words used by the speaker are not determined by those votes, the policy mandates that the “statement or invocation” be “consistent with the goals and purposes of this policy,” which are “to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.” Ibid.
In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the purpose of the message is “to solemnize the event.” A religious message is the most obvious method of solemnizing an event. Moreover, the requirements that the message “promote good sportsmanship” and “establish the appropriate environment for competition” further narrow the types of message deemed appropriate, suggesting that a solemn, yet nonreligious, message, such as commentary on United States foreign policy, would be prohibited. Indeed, the only type of message that is expressly endorsed in the text is an “invocation” — a term that primarily describes an appeal for divine assistance. In fact, as used in the past at Santa Fe High School, an “invocation” has always entailed a focused religious message. Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections described in the parties’ stipulation make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony. We recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of various occasions so as to mark those occasions’ significance. But such religious activity in public schools, as elsewhere, must comport with the First Amendment.
The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property. The message is broadcast over the school’s public address system, which remains subject to the control of school officials. It is fair to assume that the pregame ceremony is clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot. The school’s name is likely written in large print across the field and on banners and flags. The crowd will certainly inelude many who display the school colors and insignia on their school T-shirts, jackets, or hats and who may also be waving signs displaying the school name. It is in a setting such as this that “[t]he board has chosen to permit” the elected student to rise and give the "statement or invocation.”
In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. In cases involving state participation in a religious activity, one of the relevant questions is “whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools.” Wallace, 472 U. S., at 73, 76 (O’Connor, J., concurring in judgment); see also Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 777 (1995) (O’Connor, J., concurring in part and concurring in judgment). Regardless of the listener’s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.
The text and history of this policy, moreover, reinforce our objective student’s perception that the prayer is, in actuality, encouraged by the school. When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to "distinguis[h3 a sham secular purpose from a sincere one.” Wallace, 472 U. S., at 75 (O’CONNOR, J., concurring in judgment).
According to the District, the secular purposes of the policy are to “foste[r] free expression of private persons . . . as well [as to] solemniz[e] sporting events, promot[e] good sportsmanship and student safety, and establis[h] an appropriate environment for competition.” Brief for Petitioner 14. We note, however, that the District’s approval of only one specific kind of message, an “invocation,” is not necessary to further any of these purposes. Additionally, the fact that only one student is permitted to give a content-limited message suggests that this policy does little to “foste[r] free expression.” Furthermore, regardless of whether one considers a sporting event an appropriate occasion for solemnity, the use of an invocation to foster such solemnity is impermissible when, in actuality, it constitutes prayer sponsored by the school. And it is unclear what type of message would be both appropriately “solemnizing” under the District’s policy and yet nonreligious.
Most striking to us is the evolution of the current policy from the long-sanctioned office of “Student Chaplain” to the candidly titled “Prayer at Football Games” regulation. This histoiy indicates that the District intended to preserve the practice of prayer before football games. The conclusion that the District viewed the October policy simply as a continuation of the previous policies is dramatically illustrated by the faet that the school did not conduct a new election, pursuant to the current policy, to replace the results of the previous election, which occurred under the former policy. Given these observations, and in light of the school’s history of regular delivery of a student-led prayer at athletic events, it is reasonable to infer that the specific purpose of the policy was to preserve a popular “state-sponsored religious practice.” Lee, 505 U. S., at 596.
School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants “that they are outsiders, not full members of the political community, and an ae-companying message to adherants that they are insiders, favored members of the political community.” Lynch, 465 U. S., at 688 (O’Connor, J., concurring). The delivery of such a message — over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer — is not properly characterized as “private” speech.
Ill
The District next argues that its football policy is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. Its argument has two parts: first, that there is no impermissible government coercion because the pregame messages are the product of student choices; and second, that there is really no coercion at all because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary.
The reasons just discussed explaining why the alleged “circuit-breaker” mechanism of the dual elections and student speaker do not turn public speech into private speech also demonstrate why these mechanisms do not insulate the school from the coercive element of the final message. In fact, this aspect of the District’s argument exposes anew the concerns that are created by the majoritarian election system. The parties’ stipulation clearly states that the issue resolved in the first election was “whether a student would deliver prayer at varsity football games,” App. 65, and the controversy in this case demonstrates that the views of the students are not unanimous on that issue.
One of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control. We explained in Lee that the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere.” 505 U. S., at 589. The two student elections authorized by the policy, coupled with the debates that presumably must precede each, impermissibly invade that private sphere. The election mechanism, when considered in light of the history in which the policy in question evolved, reflects a device the District put in place that determines whether religious messages will be delivered at home football games. The mechanism encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause. Although it is true that the ultimate choice of student speaker is “attributable to the students,” Brief for Petitioner 40, the District’s decision to hold the constitutionally problematic election is clearly “a choice attributable to the State,” Lee, 505 U. S., at 587.
The District further argues that attendance at the commencement ceremonies at issue in Lee “differs dramatically” from attendance at high school football games, which it contends “are of no more than passing interest to many students” and are “decidedly extracurricular,” thus dissipating any coercion. Brief for Petitioner 41. Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. Moreover, we may assume that the District is correct in arguing that the informal pressure to attend an athletic event is not as strong as a senior’s desire to attend her own graduation ceremony.
There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience. As we noted in Lee, “[l]aw reaches past formalism.” 505 U. S., at 595. To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is “formalistic in the extreme.” Ibid. We stressed in Lee the obvious- observation that “adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.” Id., at 598. High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between attending these games and avoiding personally offensive religious rituals is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students for “[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.” Id., at 596.
Even if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. For “the government may no more use social pressure to enforce orthodoxy than it may use more direct means.” Id., at 594. As in Lee, “[w]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.” Id., at 592. The constitutional command will not permit the District “to exact religious conformity from a student as the price” of joining her classmates at a varsity football game.
The Religion Clauses of the First Amendment prevent the government from making any law respecting the establishment of religion or prohibiting the free exercise thereof. By no means do these commands impose a prohibition on all religious activity in our public schools. See, e. g., Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 395 (1993); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990); Wallace, 472 U. S., at 59. Indeed, the common purpose of the Religion Clauses “is to secure religious liberty.” Engel v. Vitale, 370 U. S. 421, 430 (1962). Thus, nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the sehoolday. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.
IV
Finally, the District argues repeatedly that the Does have made a premature facial challenge to the October policy that necessarily must fail. The District emphasizes, quite correctly, that until a student actually delivers a solemnizing message under the latest version of the policy, there can be no certainty that any of the statements or invocations will be religious. Thus, it concludes, the October policy necessarily survives a facial challenge.
This argument, however, assumes that we are concerned only with the serious constitutional injury that occurs when a student is forced to participate in an act of religious worship because she chooses to attend a school event. But the Constitution also requires that we keep in mind “the myriad, subtle ways in which Establishment Clause values can be eroded,” Lynch, 465 U. S., at 694 (O’Connor, J., concurring), and that we guard against other different, yet equally important, constitutional injuries. One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion. Another is the implementation of a governmental electoral process that subjects the issue of prayer to a majoritarian vote.
"016 District argues that the facial challenge must fail because “Santa Fe’s Football Policy cannot be invalidated on the basis of some ‘possibility or even likelihood’ of an unconstitutional application.” Brief for Petitioner 17 (quoting Bowen v. Kendrick, 487 U. S. 589, 613 (1988)). Our Establishment Clause cases involving facial challenges, however, have not focused solely on the possible applications of the statute, but rather have considered whether the statute has an unconstitutional purpose. Writing for the Court in Bowen, The CHIEF Justice concluded that “[a]s in previous eases involving facial challenges on Establishment Clause grounds, e. g., Edwards v. Aguillard, [482 U. S..578 (1987)]; Mueller v. Allen, 468 U. S. 388 (1983), we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U. S. 602, 612 (1971)..., which guides ‘[t]he general nature of our inquiry in this area,’ Mueller v. Allen, supra, at 394.” 487 U. S., at 602. Under the Lemon standard, a court must invalidate a statute if it lacks “a secular legislative purpose.” Lemon v. Kurtzman, 403 U. S. 602, 612 (1971). It is therefore proper, as part of this facial challenge, for us to examine the purpose of the October policy.
As discussed, swpra, at 306-307,309, the text of the October policy alone reveals that it has an unconstitutional purpose. The plain language of the policy clearly spells out the extent of school involvement in both the election of the speaker and the content of the message. Additionally, the text of the October policy specifies only one, clearly preferred message — that of Santa Fe’s traditional religious “invocation.” Finally, the extremely selective access of the policy and other content restrictions confirm that it is not a content-neutral regulation that creates a limited public forum for the expression of student speech. Our examination, however, need not stop at an analysis of the text of the policy.
This ease comes to us as the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause. One of those practices was the District’s long-established tradition of sanctioning student-led prayer at varsity football games. The narrow question before us is whether implementation of the October policy insulates the continuation of such prayers from constitutional scrutiny. It does not. Our inquiry into this question not only can, but must, include an examination of the circumstances surrounding its enactment. Whether a government activity violates the Establishment Clause is “in large part a legal question to be answered on the basis of judicial interpretation of social facts.... Every government practice must be judged in its unique circumstances —” Lynch, 465 U. S., at 693-694 (O’Connok, J., concurring). Our discussion in the previous sections, supra, at 307-310, demonstrates that in this ease the District’s direct involvement with school prayer exceeds constitutional limits.
The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly — that this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to “solemnize” a football game and that this single-student, year-long position is essential to the protection of student speech. We refuse to turn a blind eye to the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer.
Therefore, the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation. We need not wait for the inevitable to confirm and magnify the constitutional injury. In Wallace, for example, we invalidated Alabama's as yet unimplemented and voluntary “moment of silence” statute based on our conclusion that it was enacted “for the sole purpose of expressing the State’s endorsement of prayer activities for one minute at the beginning of each school day.” 472 U. S., at 60; see also Church of Lukumi Bdbalu Aye, Inc. v. Hialeah, 508 U. S. 520, 582 (1998). Therefore, even if no Santa Fe High School student were ever to offer a religious message, the October policy fails a facial challenge because the attempt by the District to encourage prayer is also at issue. Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail.
This policy likewise does not survive a facial challenge because it impermissibly imposes upon the student body a majoritarian election on the issue of prayer. Through its election scheme, the District has established a governmental electoral mechanism that turns the school into a forum for religious debate. It further empowers the student body majority with the authority to subject students of minority views to constitutionally improper messages. The award of that power alone, regardless of the students’ ultimate use of it, is not acceptable. Like the referendum in Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 (2000), the election mechanism established by the District undermines the essential protection of minority viewpoints. Such a system encourages divisiveness along religious lines and threatens the imposition of coercion upon those students not desiring to participate in a religious exercise. Simply by establishing this school-related procedure, which entrusts the inherently nongovernmental subject of religion to a majoritarian vote, a constitutional violation has occurred. No further injury is required for the policy to fail a facial challenge.
To properly examine this policy on its face, we “must be deemed aware of the history and context of the community and forum,” Pinette, 515 U. S., at 780 (O’Connor, J., concurring in part and concurring in judgment). Our examination of those circumstances above leads to the conclusion that this policy does not provide the District with the constitutional safe harbor it sought. The policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.
The judgment of the Court of Appeals is, accordingly, affirmed.
It is so ordered.
A decision, the Fifth Circuit Court of Appeals noted, that many District officials “apparently neither agreed with nor particularly respected.” 168 F. 3d 806, 809, n. 1 (CA5 1999). About a month after the complaint was filed, the District Court entered an order that provided, in part:
“[A]ny further attempt on the part of District or school administration, officials, counsellors, teachers, employees or servants of the School District, parents, students or anyone else, overtly or covertly to ferret out the identities of the Plaintiffs in this cause, by means of bogus petitions, questionnaires, individual interrogation, or downright ‘snooping’, will cease immediately. ANYONE TAKING ANY ACTION ON SCHOOL PROPERTY, DURING SCHOOL HOURS, OR WITH SCHOOL RESOURCES OR APPROVAL FOR PURPOSES OF ATTEMPTING TO ELICIT THE NAMES OR IDENTITIES OF THE PLAINTIFFS IN THIS CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESE INDIVIDUALS, WILL FACE THE HARSHEST POSSIBLE CONTEMPT SANCTIONS FROM THIS COURT, AND MAY ADDITIONALLY FACE CRIMINAL LIABILITY. The Court wants these proceedings addressed on their merits, and not on the basis of intimidation or harassment of the participants on either side.” App. 34-35.
At the 1994 graduation ceremony the senior class president delivered this invocation:
“Please bow your heads.
“Dear heavenly Father, thank you for allowing us to gather here safely tonight. We thank you for the wonderful year you have allowed us to spend together as students of Santa Fe. We thank you for our teachers who have devoted many hours to each of us. Thank you, Lord, for our parents and may each one receive the special blessing. We pray also for a blessing and guidance as each student moves forward in the future. Lord, bless this ceremony and give us all a safe journey home. In Jesus’ name we pray.” Id., at 19.
For example, it prohibited school officials from endorsing or participating in the baccalaureate ceremony sponsored by the Santa Fe Ministerial Alliance, and ordered the District to establish policies to deal with “manifest First Amendment infractions of teachers, counsellors, or other District or school officials or personnel, such as ridiculing, berating or holding up for inappropriate scrutiny or examination the beliefs of any individual students. Similarly, the School District will establish or clarify existing procedures for excluding overt or covert sectarian and proselytizing religious teaching, such as the use of blatantly denominational religious terms in spelling lessons, denominational religious songs and poems in English or choir classes, denominational religious stories and parables in grammar lessons and the like, while at the same time allowing for frank and open discussion of moral, religious, and societal views and beliefs, which are non-denominational and non-judgmental.” Id., at 34.
The student giving the invocation thanked the Lord for keeping the class safe through 12 years of school and for gracing their lives with two special people and closed: “Lord, we ask that You keep Your hand upon us during this ceremony and to help us keep You in our hearts through the rest of our lives. In God's name we pray. Amen.” Id., at 53. The student benediction was similar in content and closed: “Lord, we ask for Your protection as we depart to our next destination and watch over us as we go our separate ways. Grant each of us a safe trip and keep us secure throughout the night. In Your name we pray. Amen.” Id., at 54.
Despite these changes, the school did not conduct another election, under the October policy, to supersede the results of the August policy election.
It provides:
“STUDENT ACTIVITIES:
“PRE-GAME CEREMONIES AT FOOTBALL GAMES
“The board has chosen to permit students to deliver a brief invocation and/or message to be delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.
“Upon advice and direction of the high school principal, each spring, the high school student council shall conduct an election, by the high school student body, by secret ballot, to determine whether such a statement or invocation will be a part of the pre-game ceremonies and if so, shall elect a student, from a list of student volunteers, to deliver the statement or invocation. The student volunteer who is selected by his or her classmates may decide what message and/or invocation to deliver, consistent with the goals and purposes of this policy.
“If the District is enjoined by a court order from the enforcement of this policy, then and only then will the following policy automatically become the applicable policy of the school district.
“The board has chosen to permit students to deliver a brief invocation and/or message to be delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.
“Upon advice and direction of the high school principal, each spring, the high school student council shall conduct an election, by the high school student, body, by secret ballot, to determine whether such a message or invocation will be a part of the pre-game ceremonies and if so, shall elect a student, from a list of student volunteers, to deliver the statement or invocation. The student volunteer who is selected by his or her classmates may decide what statement or invocation to deliver, consistent with the goals and purposes of this policy. Any message and/or invocation delivered by a student must be nonsectarian and nonproselytizing.” Id., at 104-105.
“The graduation prayers at issue in the instant case, in contrast, are infused with explicit references to Jesus Christ and otherwise appeal to distinctively Christian beliefs. The Court accordingly finds that use of these prayers during graduation ceremonies, considered in light of the overall manner in which they were delivered, violated the Establishment Clause.” App. to Pet. for Cert. E8.
Id., at E8-E9.
Because the dissent overlooks this case, it incorrectly assumes that a “prayer-only policy” at football games was permissible in the Fifth Circuit. See post, at 323 (opinion of Rehnquist, C. J.).
«'jhere are in fact several secular reasons for allowing a brief, serious message before football games — some of which [the District] has listed in its policy. At sporting events, messages and/or invocations can promote, among other things, honest and fair play, dean competition, individual challenge to be one’s best, importance of team work, and many more goals that the majority could conceive would it only pause to do so.
“Having again relinquished all editorial control, [the District] has created a limited public forum for the students to give brief statements or prayers concerning the value of those goals and the methods for achieving them.” 168 F. 3d, at 835.
“The majority fails to realize that what is at issue in this facial challenge to this school policy is the neutral accommodation of non-coerced, private, religious speech, which allows students, selected by students, to express their personal viewpoints. The state is not involved. The school board has neither scripted, supervised, endorsed, suggested, nor edited these personal viewpoints. Yet the majority imposes a judicial curse upon sectarian religious speech.” Id., at 836.
See, e. g., Brief for Petitioner 44-48, citing Rosenberger v. Reetor and Visitors of Univ. of Va., 515 U. S. 819 (1995) (limited public forum); Widmar v. Vincent, 454 U. S. 263 (1981) (limited public forum); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 (1995) (traditional public forum); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) (limited public forum). Although the District relies on these public forum cases, it does not actually argue that the pregame ceremony constitutes such a forum.
A conclusion that the District had created a public forum would help shed light on whether the resulting speech is public or private, but we also note that we have never held the mere creation of a public forum shields the government entity from scrutiny under the Establishment Clause. See, e.g., Pinette, 515 U.S., at 772 (O’Connor, J., concurring in part and concurring in judgment) (“I see no necessity to carve out ... an exception to the endorsement test for the public forum context”).
The school’s internal mail system in Perry was open to various private organizations such as “[l]ocal parochial schools, church groups, YMCA’s, and Cub Scout units.” 460 U. S., at 39, n. 2.
If instead of a choice between an invocation and no pregame message, the first election determined whether a political speech should be made, and the second election determined whether the speaker should be a Democrat or a Republican, it would be rather clear that the public address system was being used to deliver a partisan message reflecting the viewpoint of the majority rather than a random statement by a private individual.
The fact that the District’s policy provides for the election of the speaker only after the majority has voted on her message identifies an obvious distinction between this case and the typical election of a “student body president, or even a newly elected prom king or queen.” Post, at 321.
Brief for Petitioner 19 (quoting Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226,248 (1990) (plurality opinion)).
Tr. of Oral Arg. 7.
The Chief Justice’s hypothetical of the student body president asked by the school to introduce a guest speaker with a biography of her accomplishments, see post, at 325 (dissenting opinion), obviously would pose no problems under the Establishment Clause.
See, e.g., Webster’s Third New International Dictionary 1190 (1993) (defining “invocation” as “a prayer of entreaty that is usu[ally] a call for the divine presence and is offered at the beginning of a meeting or service of worship”).
See supra, at 297-298, and n. 4.
Even if the plain language of the October policy were facially neutral, “the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S., at 777 (O’Connok, J., concurring in part and concurring in judgment); see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534-535 (1993) (making the same point in the Free Exercise Clause context).
“We think the Government's position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah’s classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands.” Lee, 505 U. S., at 595-596.
The Chief Justice accuses us of “essentially invalidat[ing] all student elections,” see post, at 321. This is obvious hyperbole. We have concluded that the resulting religious message under this policy would be attributable to the school, not just the student, see swpra, at 301-310. For this reason, we now hold only that the District’s decision to allow the student majority to control whether students of minority views are subjected to a school-sponsored prayer violates the Establishment Clause.
The Chief Justice contends that we have “misconstrue[d] the nature ... [of] the policy as being an election on ‘prayer’ and ‘religion,’” post, at 320. We therefore reiterate that the District has stipulated to the facts that the most recent election was held “to determine whether a student would deliver prayer at varsity football games,” that the “students chose to allow a student to say a prayer at football games,” and that a second election was then held “to determine which student would deliver the prayer.” App. 65-66 (emphases added). Furthermore, the policy was titled “Prayer at Football Games.” Id., at 99 (emphasis added). Although the District has since eliminated the word “prayer” from the policy, it apparently viewed that change as sufficiently minor as to make holding a new election unnecessary.
stay, petition, or motion granted affirmed (includes modified) reversed reversed and remanded vacated and remanded affirmed and reversed (or vacated) in part affirmed and reversed (or vacated) in part and remanded vacated petition denied or appeal dismissed certification to or from a lower court no disposition