People for the American Way Report in Opposition to the Confirmation of Michael W. McConnell

McConnell’s view of the First Amendment would threaten the right of religious minorities to avoid being made “captive audiences” to religious worship and promotion of religion

McConnell’s confirmation would also jeopardize the right of religious minorities and others who object to being made captive audiences to prayer and religious worship by the government, particularly students in public schools. This is apparent from McConnell’s support for the “student-initiated” school prayer policy at issue in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). In that case, the Supreme Court struck down a public school district policy authorizing students to conduct so-called “student-led, student-initiated” prayers over the public address system prior to high school football games. The policy in question allowed students to vote each year on whether to have “a brief invocation and/or message” prior to the football games. 530 U.S. at 298, n.6.

McConnell, representing the Christian Legal Society, filed an amicus curiae brief in the case urging the Court to uphold the school district’s policy on the ground that the prayers were private speech, an argument also advanced by the school district.38 The Court, in a 6-3 ruling, squarely rejected this contention, noting that “[t]hese invocations are authorized by a government policy and take place on government property at government-sponsored school-related events.” 530 U.S. at 302. As the Court recognized, the delivery of a religious 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.” Id. at 310.

Apparently viewing the “student-initiation” of the prayers with dispositive effect under the Constitution, McConnell’s brief also discounted concerns about those in the football game audience who might have come to see a sporting event without desiring to participate in religious worship. According to McConnell, who characterized the prayers as “privately initiated” speech, it would be “untenable to suggest” that they “may be censored because they might be offensive to those in attendance.”
1999 WL 1272948, *14. The Court, however, recognized the impermissibly coercive nature of subjecting students at a school-sponsored event to prayers broadcast over the school district’s public address system, noting that “the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship.” 530 U.S. at 312. The Court explained that the Constitution prohibits a public school from forcing students to choose between attending a school-sponsored event or “risk facing a personally offensive religious ritual.” Id.

McConnell’s troubling view of what should be considered “private” religious expression under the Establishment Clause, and his failure to give appropriate consideration to the rights of religious minority students in class or at other school-sponsored events who may not want to participate in such religious expression, is also reflected in his criticism of both Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1992) and Bishop v. Aronov, 926 F.2d 1066, (11th Cir. 1991), cert. denied, Bishop v. Delchamps, 502 U.S. 1218 (1992). In testimony before Congress, McConnell criticized both cases as involving “anti-religious discrimination” and the “denial of equal rights of expression.”39 The facts reveal otherwise.

In Bishop, the Eleventh Circuit upheld a public university’s decision, following complaints by students, to prohibit a professor from injecting his religious beliefs into his classes and from conducting “optional” after-class meetings on campus (which the professor had held shortly before final exams) at which the professor brought his religious perspective to bear on his academic topics. The court rejected the professor’s claim that the prohibition violated his free speech rights, noting that a teacher’s speech, particular his in-class speech, “can be taken as directly and deliberately representative of the school.” 926 F.2d at 1073. The court recognized the university’s authority reasonably to control “the content of its curriculum.” Id. at 1074.

In particular, the court noted that the context of the speech led it to “consider the coercive effect upon students that a professor’s speech inherently possesses, and that the University may wish to avoid. The University’s interest is most obvious when student complaints suggest apparent coercion -- even when not intended by the professor.” Id. at 1074 (emphasis added). Moreover, as the court stated, “an Islamic or Jewish student will not savor the Christian bias that Dr. Bishop professes.” Id. at 1072. The court summarily rejected the professor’s claim that his free exercise rights had been violated, explaining that “[w]e are not persuaded that, even in the remotest sense, Dr. Bishop’s rights of free exercise or worship as those concepts are comprehended in constitutional parlance are implicated.” Id. at 1077.

In Roberts, the Tenth Circuit –- the same court to which McConnell has been nominated –- upheld a trial court judgment that a public school district had not violated the First Amendment rights of a fifth grade teacher by prohibiting him from displaying his personal Bible on his desk throughout the school day, reading the Bible during the students’ “silent reading period,” and keeping two of his personal religious books in the classroom library (The Life of Jesus and The Bible in Pictures). In affirming the district court’s ruling, the court of appeals emphasized that it was made in the entire context and totality of the teacher’s actions, including the fact that he displayed a poster in his classroom proclaiming “You have only to open your eyes to see the hand of God.” 921 F.2d at 1049-51, 1056-58.

In criticizing both of these cases as involving the “denial of equal rights of expression,” McConnell has ignored the critical fact that a public school teacher, when acting in that capacity, is acting as a representative of the government and not as a private citizen. In that capacity, a teacher has no “equal rights of expression,” but is obligated, as is the government itself, not to endorse or promote religion. Any other rule would allow government representatives, including teachers during class time, affirmatively to endorse or advance religion. The coercive aspects of this are readily apparent, as the Eleventh Circuit expressly noted in Bishop. McConnell’s characterization of these cases failed to view the teachers’ actions from the perspective of the captive audience of students in these classes who may not have shared their teacher’s religious beliefs and were made to feel like outsiders by their own teachers.40

McConnell has further revealed how little value he places on protecting students and others in captive audience situations from government sponsored religious expression in an article entitled “Freedom From Religion?,” The American Enterprise, (Jan./Feb. 1993), at 36. In that article, McConnell criticized the Supreme Court for hearing cases such as Lee v. Weisman, 505 U.S. 577 (1992), yet refusing to hear cases such as Roberts v. Madigan and Bishop v. Aronov. In Lee v. Weisman, the Court held that it was unconstitutional for a public school to sponsor graduation prayers, particularly noting the coercive nature of this practice upon students who desire to attend their graduation ceremony but not a religious service.

Astonishingly, McConnell claims that Weisman was an “inconsequential” case that had “nothing to do with freedom of religion.”41 Rather, claims McConnell, it is about “freedom from religion,”42 a misleading and pejorative term that fails to view the problems raised by government sponsorship of religious worship from the perspective of those in the captive audience who do not share the particular religious beliefs being promoted by the government. Though he did not disagree with the holding in Weisman, McConnell chastised the Supreme Court for hearing the case yet refusing to hear what he considered to be far more important cases allegedly involving “vastly more serious claims of interference with religious liberty,” specifically including Roberts v. Madigan and Bishop v. Aronov.43

This juxtaposition of cases reveals a great deal about McConnell and whose interests he considers to be important: he discounts the right of the students in Weisman not to be made a captive audience to religious worship by their own school, and finds it an offense of constitutional dimension that the public school teachers in Roberts and Bishop were unable to promote religion in the classroom. The fact that McConnell views the latter two cases as a greater threat to religious liberty than the former speaks volumes about his disturbing perspective on the First Amendment.44

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