Cole v. Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000)
Ferrin Cole and Chris Niemeyer, students at Oroville High School, were selected to give the invocation and valedictorian graduation speeches, respectively. The district had a policy of reviewing the speeches. During this review process, the school informed the students that their messages were too sectarian and proselytizing and had to be modified. When the students refused, they were denied the opportunity to speak at graduation. The students sued, seeking damages for denial of their First Amendment right of free speech.
Whether a school's revocation of students' opportunity to give invocation and valedictorian speeches at graduation due to the religious and proselytizing nature of their messages violates the students' freedom of speech.
In a 3-0 decision, a Ninth Circuit panel ruled that a graduation ceremony is not an open speech forum but a government ceremony, and as such, the school has a responsibility to avoid Establishment Clause violations during its graduation ceremony.
The court found that the close control the school exercised over every aspect of the ceremony gave the student speeches the implied endorsement of the school. Since the student messages bore the imprimatur of the school, the school had an obligation to make sure that the student messages would not violate the Establishment Clause. For these reasons, the court easily found that the graduation prayer was problematic irrelevant of its specific theological content.
The valedictorian speech posed harder problems. Yet in the end, the level of the school’s control over the content of the speech indicated that the speech was not purely private student speech, but bore the significant imprimatur of the school.
"Because district approval of the content of student speech was required, allowing Niemeyer to make a sectarian, proselytizing speech as part of the graduation ceremony would have lent District approval to the religious message of the speech. Equally important, an objective observer familiar with the District's policy and its implementation would have likely perceived that the speech carried the District's seal of approval." (Judge Raymond C. Fisher)
Sunday, November 23, 2014 | 12:05:14