SUPREME COURT WATCH

	March 29, 2000
	Action today at the U.S. Supreme Court, and to Gwen Ifill.

GWEN IFILL: In much of Texas, they say high school football is its own religion. But a dispute in the Galveston County town of Santa Fe now before the Supreme Court demands a more literal interpretation. At issue: Whether students can offer Christian prayers at football games without violating the constitutional separation of church and state. MARIAN WARD: Lord, thank you for this evening. Thank you for all the prayers that were lifted up this week for me. GWEN IFILL: Organized prayer has been banned in public schools since 1962. But in Santa Fe, Texas, school officials allowed students to vote for one of their own to offer a pre-game prayer, like this one delivered by then-18- year-old Marian Ward last fall. MARIAN WARD: In Jesus' name, amen. GWEN IFILL: A federal court had already ruled that student-led prayers at football games were out of bounds. But the town school board argued that church-state separation remained intact as long as students, not school officials, initiated the prayers. In 1995, some parents challenged that policy, arguing in part that particular religious beliefs were being forced into the public square. PARENT: I do not believe there should be prayer before the football game. There is a place and time for prayer, and I don't believe it should be before a game. They may pray silently if they like, but as far as a public announcement, I don't agree with it. GWEN IFILL: Students like Marian Ward and the attorneys for the school district say student-initiated prayer is a tradition that should be protected as free speech. RICHARD OWNBY, Superintendent, Santa Fe School District: Football and invocations have always gone together, just like saying the Pledge of Allegiance -- the National Anthem. You know, it's just a way of life, you know, and we just don't want to give that up. GWEN IFILL: Their position has popular support at home in Santa Fe, where parents say schools need more, not less religion. PARENT: It helps the kids to do good instead of bad. I think they're taking all the good out of schools, and that's why our kids are going bad. GWEN IFILL: Also joining the fray, which may have national implications, is Texas Governor George W. Bush. In his own brief filed at the Supreme Court, he says all student-led prayer should be legal. GWEN IFILL: For more on the Supreme Court today, we turn to NewsHour regular Jan Crawford Greenburg, national legal affairs correspondent for the "Chicago Tribune." So, Jan, first tell us what the lawyers on either side argued. It was kind of a case of whether prayer in a football game is a neutral practice or whether it's coerced worship. JAN CRAWFORD GREENBURG: Right. The lawyer for the school district argued first, and he said, look, this is a really neutral policy. It allows students to get up and express their own views. This is not the government speaking here. It's student-led, student-initiated and students choose the content of the message. And to deny students that right is hostile to religion. Obviously, the lawyer for a group of students challenging the practice saw it quite, quite differently, and he said, no, any time you have students by majority vote selecting a student to give a prayer, how can you say it's neutral and that it would hurt students who have views that most people don't hold. GWEN IFILL: Is there a potential here for court-sanctioned censorship? JAN CRAWFORD GREENBURG: Well I think that the lawyer for the school district says absolutely yes. For example, he gave example today that a student could be allowed to sing John Lennon's "Imagine" but could be prohibited from singing "Amazing Grace." And he said that that's the danger here, that it censors religious speech or speech with any kind of religious overtones singling out religious views. GWEN IFILL: If the court finds that it's okay for prayers to happen before football games, what's to stop then allowing a school board allowing prayer before any other kind of school events or eventually prayers in classrooms? JAN CRAWFORD GREENBURG: That was discussed quite a lot today. A lawyer for the student challenging this policy said, you know, how can you draw the line here? If we allow it here, we have prayers before plays and prayers before concerts. So he sees this as kind of a slippery slope, that if you allow a prayer before a football game, the justification is just impossible to come up with for not allowing it somewhere else. GWEN IFILL: So what do the justices have to say to all of this? JAN CRAWFORD GREENBURG: This is an issue that as we know it's divided Congress and countless state legislatures and parents. So it really should come as no surprise that it divided the Justices too. They expressed a variety of views. I think Justice David Souter seemed more hostile to the school's policy here. He was...just couldn't understand, as he said, i mean, this seems like a religious message, an act of religious worship and we have a situation where we have a school forum. We have students gathered and we won't, you know, allow them to get up and leave during a prayer. So how could that not be a violation of the establishment clause which in the First Amendment prohibits the government from establishing a religion? GWEN IFILL: Who seemed the most sympathetic. JAN CRAWFORD GREENBURG: Well, the Justice who sits to his right. GWEN IFILL: Literally. JAN CRAWFORD GREENBURG: Justice Antonin Scalia. Side by side on the bench and miles apart absolutely. Justice Scalia suggested that he saw no real problem with this policy was very neutral. The school wasn't sponsoring this message. It wasn't during school hours, which the court has said, you know, that's a totally different analysis. GWEN IFILL: Students are not forced to attend these football games. JAN CRAWFORD GREENBURG: Exactly, that's right. Presumably they could do something else. Their attendance is not required. Now the lawyer for the schools challenging the policy said, well, they're teenagers. I mean, yeah, they are required. Furthermore band members have to go to football games and cheerleaders and the football players themselves. Scalia's' point was that is social coercion. That's not enough. Ultimately a student can decide not to engage in those activities. GWEN IFILL: This case is different from other school prayer cases because this is a question of allowing the students to vote for someone. And so that can be construed to be student free speech. JAN CRAWFORD GREENBURG: Well, the election aspect of this policy where the students pick the student that they want to say the prayers is what troubles two Justices who are often considered swing votes - Justice Anthony Kennedy and Justice Sandra Day O'Connor. Justice Kennedy said by electing, having the student elect their prayer leader raises the specter of students actually campaigning about prayer in school. He suggested a scenario where you could have a student running for this position and saying, look, I'm a great, inspirational speaker and another student running for the position saying I don't think we need to have prayer at all so my message will not have anything to do with prayer and religion. So all of a sudden you have this debate in school over prayer. To Justice Kennedy that's what the establishment clause is designed to prevent. GWEN IFILL: Would this affect at all say the captain of a football team decides to go into a huddle and leads the other team members in prayer, would this affect this at all? JAN CRAWFORD GREENBURG: Well, Justice O'Connor raised that point today and said you know, that seems like if the football team captain wanted to stand up and lead people in prayer, that's not school directed, totally voluntary, and it would be a completely different situation. GWEN IFILL: Doesn't the government already restrict speech in some ways? Obviously this is just - this is prayer and this is very specific but certainly, you know, students are allowed officially anyway to curse and threaten and all of that sort of thing at football games. JAN CRAWFORD GREENBURG: Right, and the attorney general for the state of Texas, who also defended the policy in court today, acknowledged that the schools could limit some of the content in order to keep order, that yes, it could prevent students from using foul language. But just by engaging in this policy of having a neutral plan to allow this kind of indication he said should be okay. GWEN IFILL: Justice Ginsburg actually had an example of that? JAN CRAWFORD GREENBURG: Yes, she did. It was something like, she said it in a way that was almost like a cheer. She said, well, could students say, break their necks, make them wrecks, buckle down, boys, and, you know, suggesting that maybe that prayer is... I mean, that message might not be okay. And the lawyer defending the school district said that's really not designed to promote sportsmanship. So if it's not according to the reasons that the school has this policy, maybe the school should draw the line. GWEN IFILL: The court has ruled in the past that a member of the clergy cannot lead a prayer at, say a commencement. How is that different from this case? JAN CRAWFORD GREENBURG: Well, that case was in 1992. And they said that having the school pick a rabbi in that case to lead students in prayer violated the Constitution, the First Amendment's establishment clause because that was a school-selected clergyman, and here it's student selected, students control the content so you don't have the government involvement and the government entanglement. GWEN IFILL: Another case before the court today, at least it was brought, I don't know how to make the segueway so I'm not going to bother. It's about nude dancing in Erie, Pennsylvania. JAN CRAWFORD GREENBURG: A First Amendment case; this case involves free expression. It was a challenge to Erie, Pennsylvania ordinance that restricted nude dancing and public nudity. This is an area that the court has visited before in 1991. They upheld an Indiana ordinance that limited public nudity but they couldn't really come up with a reason why, so today they went back to the drawing board and still were hopelessly divided in many areas but they did agree that Erie could ban nude dancing. Communities across the country can ban completely nude dancing in the interest of preventing crime and violence and some of the other harms that might come from these kinds of establishments. GWEN IFILL: So the reasoning wasn't necessarily the nudity itself or whether nudity is actually reasonable free expression. It was the secondary effects. JAN CRAWFORD GREENBURG: Right. But in her opinion today, Justice O'Connor said that nude dancing is protected expression though it's kind of way out there….and she noted that the court today in saying that communities could ban totally nude dancing wasn't completely limiting it, that, you know, female dancers still could wear G-strings and pasties -- just because they can't take off the last stitch and really be a huge infringement of their First Amendment rights. GWEN IFILL: Our Supreme Court at work. Jan Greenburg, thank you. JAN CRAWFORD GREENBURG: Thank you.