Excerpts from Santa Fe v. Doe

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 council 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 nonsectarian, nonproselytizing 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.

I

On May 10, 1995, the District Court entered an interim order addressing a number of different issues. 3 With respect to the impeding 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 pre-approval 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)

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.4 

In July, the District enacted another policy eliminating the requirement that invocations and benedictions be "nonsectarian and nonproselytizing" but also provided 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, "the 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 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," (7) 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."(8) 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.

II

The first Clause in the First Amendment tot he 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 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 case:

"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 Constitutional 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 it s 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 the Visitors of Univ. of Va,, 515 U.S. 819 (1995). Although the District relies heavily on Rosenberger and similar cases involving such forums,(12)  it is clear that the pregame ceremony is not the type of forum discussed in those cases.(13)  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 .A" 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 14-15, 17.

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.(15)  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 be 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’" (16) or by characterizing the individual student as the "circuit-breaker"(17) 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 to the State and thus put school-age children who objected in an untenable position." 505 U. S., at 590.

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 citizenship" 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.(18)  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.(19) 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 encourages the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections described in the parities’ stipulation (20) make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony.(21) 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 jut 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.

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. On the 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.

According to the District, the secular purposes of the policy are to "foster free expression of private persons… as well [as to] solemnize sporting events, promote good sportsmanship and student safety, and establish 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 "foster 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 non-religious.

School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are non adherents "that they are outsiders, not full member so the political community, and an accompany message to adherents that they are insiders, favored members of the political community." Lynch v. Donnelly, 465 U. S., at 688 (1984) (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.

III

The District next argues that its football policy is distinguishable form 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…

One of the purposes served by the Establishment Clause is to removed 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 tot he 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 devisiveness 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 tot he students," Brief for Petitioner 40, the District’s decision to hold the constitutionally problematic election is clearly "a choice attributable tot the State," Lee, 505 U.S., at 587.

The District further argues that attendance at the commencement ceremonies at issue in  "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 seniors 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, "law 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 and 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 593. 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 preset 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 whether to attend these games or to risk facing a personally offensive religious ritual 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 "it 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, "what 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 at the price" of joining her classmates at a varsity football game. (22)

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. 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 schoolday. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.

IV

As Discussed, supra, at 14-15, 17, 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 case 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’Connor, J., concurring). Our discussion in the previous sections, supra, at 15-18, demonstrates that in this case 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 singe-student, year—long position is essential to the protection of student speech. We refuse to turn a blind eye tot he 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" stature 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 Lukimi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532 (1993). 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.(23)  Like the referendum in Board of Regents of Unv. Of Wis. System v. Southworth, 529 U.S.___(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 non governmental subject of religion to a majoritarian vote, a constitutional violation has occurred. (24)  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 judgement). 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 judgement of the Court of Appeals is, accordingly, affirmed. 

It is so ordered.

Santa Fe Independent School District, Petitioner v. Jane Doe, individually and as next friend for her minor children Jane and John Doe, et al.

Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, dissenting.

The court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause./ But even more disturbing that its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause when it is recalled that George Washington himself, and the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p . 64 (J. Richardson ed. 1897).

First, the Court misconstrues the nature of the "majoritarian election" permitted by the policy as being an election on "prayer" and "religion." See ante, at 22, 26. To the contrary, the election permitted by the policy is a two-fold process whereby students vote first on whether to have student speaker before football games at all, and second, if the students vote to have such a speaker, on who that speaker will be. App. 10-4-105. It is conceivable that the election could become one in which student candidates campaign on platforms that focus on whether or not they will pray if elected. It is also conceivable that he election could become one in which student candidates campaign on platforms that focus on whether or not they will pray if elected. It is also conceivable that the election could lead to a Christian prayer before 90 percent of the football games. If, upon implementation, the policy operated in this fashion, we would have a record before us to review whether the policy, as applied, violated the Establishment Clause or unduly suppressed minority viewpoints. But it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation. It is possible that the election would no focus on prayer, but on public speaking ability or social popularity. And if student did begin to focus on prayer, the school might decide to implement reasonable campaign restrictions.  (3)

But the Court ignores these possibilities by holding that merely granting the student body the power to elect a speaker that may choose to pray, "regardless of the students’ ultimate use of it, is not acceptable." Ante, at 25. The Court so holds despite that any speech may occur as a result of the election process here would be private, not government, speech. The elected student, not the government, would choose what to say. Support for the Court’s holding cannot be found in any of our cases. And it essentially invalidates all student elections. A newly elected student body president, or even a newly elected prom king or queen, could use opportunities for public speaking to say prayers. Under the Courts view, the mere grant of power to the students to vote for such offices, in light of the fear that those elected might publicly pray, violates the Establishment Clause.

Second, with respect to the policy’s purpose, the Court holds that "the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation." Ante, at 24. But the policy itself has plausible secular purposes : "To solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." App. 104-105. Where a governmental body "expresses a plausible secular purpose" for an enactment, "courts should generally defer to that stated intent." Wallace, supra, at 74-75 (O’Connor, J., concurring in judgement); see also Mueller v. Allen, 463 U.S. 388, 394-395 (1983) (stressing this Court’s "reluctance to attribute unconstitutional motives to States, particularly when a plausible secular purpose for the State’s program may be discerned from the face of the statute"). The Court grants no deference to—and appears openly hostile toward—the policy’s stated purposes, and wastes no time in concluding that they are a sham.

For example, the Court dismisses the secular purpose of solemnization by claiming that it "invites and encourages religious messages." Ante, at 14; Cf. Lynch, 465 U.S. at 693 (O’Connor, J., concurring) (discussing the "legitimate secular purposes of solemnizing public occasions"). The Court also concludes based on its rather strange view that a "religious message is the most obvious means of solemnizing an event." Ante, at 14. But it is easy to think of solemn messages that are not religious in nature, for example during that a game be fought fairly. And sporting events often begin with a solemn rendition of our national anthem, with its concluding verse "and this be our motto: ‘In God is our trust.’" Under the Court’s logic, a public school that sponsors the singing of the national anthem before football games violates the Establishment Clause. Although the Court apparently believes that solemnizing football games is an illegitimate purpose, the voters in the school district seem to disagree. Nothing in the Establishment clause prevents them from making this choice. (4)

The Court bases its conclusion that the true purpose of the policy is to endorse student prayer on its view of the school district’s history of Establishment Clause violations and the context in which the policy was written, that is, as "the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause." Ante, at 16, 17 and 22. But the context—attempted compliance with a District Court order—actually demonstrates that the school district was acting diligently to come within the governing constitutional law. The District Court ordered the school district to formulate a policy consistent with Fifth Circuit precedent, which permitted a school district to have a prayer-only policy. See Jones v. Clear Creek Independent School District, 977 F. 2d 963 (CA5 1992). But the school district went further than required by the District Court order and eventually settled on a policy that gave the student speaker a choice to deliver either an invocation or a message. In so doing, the school district exhibited a willingness to comply with, and exceed, Establishment Clause restrictions. Thus, the policy cannot be viewed as having a sectarian purpose. (5)

The court also relies on our decision in Lee v. Weisman, 505 U. S. 577 (1992), to support its conclusion. In Lee, we concluded that the content of the speech at issue, a graduation prayer given by a rabbi, was "directed and controlled" by a school official. Id., at 5988. In other words, at issue in Lee was government speech. Here, by contrast, the potential speech at issue, if the policy had been allowed to proceed, would be a message or invocation selected or created by a student. That is, if there were speech at issue here, it would b e private speech. The "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, "applies particular force to the question of endorsement. Board of Ed, of Westside Community Schools (Dist 656) v. Mergents, 496 U.S. 266, 250 (1990) (plurality opinion) (emphasis in original).

Had the policy been put into practice, the students may have chosen a speaker according to wholly secular criteria—like good public speaking skills or social popularity—and the student speaker may have chosen, on her own accord, to deliver a religious message. Such an application of the policy would likely pass constitutional muster. See Lee, supra, at 630, n. 8 (Souter, J., concurring) ("If the State had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would be harder to attribute an endorsement of religion to the State").

Finally, the Court seems to demand that a government policy be completely neutral as to content or be considered one that endorses religion. See ante, at 14. This is undoubtedly a new requirement, as our Establishment Clause jurisprudence simply does not mandate "content neutrality." That concept is found in our First Amendment speech cases and is used as a guide for determining when we apply strict scrutiny. For example, we look to "content neutrality."  That concept is found in our First Amendment speech cases and is used as a guide for neutrality" in reviewing loudness restrictions imposed on speech in public forums, see Ward v. Rock Against Racism, 491 U. S. 781 (1989), and regulations against picketing, see Boos v. Barry, 485 U.S. 312 (1988).  The Court seems to think that the fact that the policy is not content neutral somehow controls the Establishment Clause inquiry.  See ante, at 14.

But even our speech jurisprudence would not require that all public school actions with respect to student speech be content neutral.  See, e.g., Bethel School Dist. No. 402 v. Fraser, 478 U.S. 675 (1986) (allowing the imposition of sanctions against a student speaker who, in nominating a fellow student for elective office during an assembly, referred to his candidate in terms of an elaborate sexually explicit metaphor).  Schools do not violate the First Amendment every time they restrict student speech to certain categories.  But under the Court's view, a school policy under which the student body president is to solemnize the graduation ceremony by giving a favorable introduction to the guest speaker would be facially unconstitutional.  Solemnization "invites and encourages" prayer and the policy's content limitations prohibit the student body president form giving a solemn, yet non-religious, message like "commentary on Untied States foreign policy."  See ante, at 14.

The policy at issue here may be applied in an unconstitutional manner,. but it will be time enough to invalidate it if that is found to the be case.  I would reverse the judgement of the Court of Appeals.