Are speeches given by students during graduation ceremonies fully private speech, protected by the First Amendment, or are they in some fashion also government-approved speeches, thus restricted by the same First Amendment? Students giving the speeches see themselves as engaging in wholly private speech, but this ignores the context of a state ceremony where government officials have final say over who says what and when. This makes graduation ceremonies state functions.
Background Information
Every year, the program of the Oroville High School's formal graduation ceremony included a spiritual invocation delivered by a student chosen by a vote of his or her classmates and graduation speeches by the valedictorian and salutatorian. Because of concern over the content of graduation speeches, Oroville's principal reviewed the content of speeches and invocations to make sure that they were not offensive or denominational. Under this policy, the principal had the final say regarding the content of the speeches and invocations.
In the Fall of 1997, Chris Niemeyer was informed that he was covaledictorian of his class at Oroville. In April 1998, Ferrin Cole was chosen by a vote of his classmates to offer an invocation at the graduation. Both Cole and Niemeyer were late in submitting early drafts of their graduation presentations for review by Oroville faculty advisors and the principal. According to Niemeyer, his delay was "because I know they don't hold the same convictions that I do as far as faith."
When Cole and Niemeyer finally did submit their proposed remarks for review, they were told to tone down the proselytizing and sectarian religious references and to make them more nondenominational. Niemeyer submitted a second draft of his speech, which included all of the original proselytizing and religious references to Jesus, and the principal decided him the speech was still unacceptable.
Niemeyer's draft was essentially a religious sermon which advised the audience that "we are all God's children, through Jesus Christ [sic] death, when we accept his free love and saving grace in our lives, " and requested that the audience accept that "God created us" and that man's plans "will not fully succeed unless we pattern our lives after Jesus' example." The proposed speech also declared, "God seeks a personal relationship with each one of us … Jesus wants to be our best friend."
Finally, Niemeyer's speech called upon the audience to "accept God's love and grace" and "yield to God our lives." Cole's proposed invocation referred repeatedly to the heavenly father and Father God, and concluded "We ask all these things in the precious holy name of Jesus Christ, Amen."
Niemeyer's co-valedictorian, who was Jewish, also raised personal and constitutional objections to the proposed speech.
Cole and Niemeyer refused to compromise and they filed suit in district court on June 4th, but the court refused to file an injunction because there wasn't enough time to consider the issues. Niemeyer still tried to deliver his unedited speech during graduation on June 5th. During this speech he was going to refer to God and Jesus repeatedly, deciding that if anyone was offended, they could leave the graduation — even though he was told that the graduation ceremonies were government-sponsored events for which the school district was ultimately responsible. He was prohibited from speaking altogether.
Court Decision
The Ninth Circuit Court of Appeals sided with the school district on all the constitutional issues. The justices stated quite clearly that the district did what was necessary in order to avoid any violation of the Establishment Clause:
The invocation would not have been private speech, because the District authorized an invocation as part of the graduation ceremony held on District property, allowed only a student selected by a vote of his classmates to give an invocation and no doubt would have used a microphone or public address system to amplify the invocation to the audience at the graduation ceremony.
The reasoning here was much what was used in the Santa Fe v. Doe Supreme Court case decided by the Supreme Court in the previous year and which this judgement cited.
The valedictory speech from Chris Niemeyer was the more difficult of the two to decide on because it was less clear whether it should be considered private or attributable to the school district. However, the Court ultimately agreed with the district that their control over the ceremony, including their control over the other speeches, would make it clear that any content would appear to have their approval:
First, the District authorizes the valedictory speech as part of the District-administered graduation ceremony, which is held on District property and financed in part by District funds and in which only selected students are allowed to speak. Second, the principal retains supervisory control over all aspects of the graduation, and has final authority to approve the content of student speeches. Third, the District requires the students to sign a special contract obligating them to act and dress in a manner prescribed by the District.
In our society, even just standing or remaining silent can signify adherence to the views being espoused by others; therefore, allowing Niemeyer's religious sermon would have compelled dissenters to accept proselytizing during a government ceremony:
The requirement that religion be left to the private sphere is the product of a well-documented and turbulent history, demonstrating that "in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce."
The case was appealed to the Supreme Court, but the justices turned down the appeal, without comment, and let the lower court ruling stand.
Significance
The decision in Cole v. Oroville reinforces the principle that even if a speech is given by a student, that doesn't mean that the state is not somehow complicit and, therefore, can be seen as giving approval to the content. Because of this, ideas which cannot be espoused by the government also cannot be promoted by students delivering speeches at government events.
