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An Examination of Virginia Governor Terry McAuliffe's Rationale for Vetoing SB 236

JURIST Guest Columnist Michael Blissenbach, University of St. Thomas School of Law Class of 2015, discusses Virginia Governor Terry McAuliffe's Veto of SB 236, which would have codified the rights of students to pray voluntarily in school and at school events and argues that his veto of the bill was justified...

On April 27, 2014 Virginia Governor Terry McAuliffe vetoed SB 236, a bill which, as McAuliffe describes in his veto message, "proposes to codify the right of students in public schools to pray, engage in religious activities or other forms of expression and to organize prayer groups, gatherings and religious clubs to the same extent that students may engage in nonreligious activities or expression and organize other activities and groups." McAuliffe makes two arguments in support of his decision to veto the bill:

  1. The provisions in the bill pertaining to religious student clubs having equal privileges to secular student clubs is unnecessary because the federal Equal Access Act (Act) already requires public high schools to allow religious student clubs the same privileges that are granted to secular student clubs.
  2. The mandate in the bill that schools must establish a limited public forum at all school events with a public speaker and "not regulate a student's expression of a religious viewpoint on an otherwise permissible subject" violates the constitutional rights of students to attend voluntary and mandatory school events without being exposed to prayer and religious messages of a coercive nature.

I argue here that McAuliffe's first argument is incorrect but his second argument is correct in light of the US Supreme Court's reasoning in Lee v. Weisman. I will address McAuliffe's arguments in that order.

The Act, which McAuliffe cites as evidence that the provisions of SB 236 pertaining to student religious clubs are unnecessary, provides that:

It shall be unlawful for any public secondary school which receives federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

The Act then defines a "limited open forum" as follows: A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time. Thus, McAuliffe is correct in his claim that all public secondary schools that provide an opportunity for at least one extracurricular student group to meet on school premises must provide that same opportunity to other student groups, regardless of their religious, political, or philosophical views.

The provisions in SB 236, however, are broader than the Act. SB 236s' provisions pertain to students in all public schools, whereas the Equal Access Act only pertains to public secondary schools (middle schools and high schools). Public elementary schools and preschools are not required to allow religious student groups to meet on school property. Under SB 236, elementary schools would be required to allow religious student groups to meet on school property, and preschools may have to as well depending on whether they are considered "public schools" under applicable Virginia law, as SB 326 does not define the term.

Moreover, whereas the provisions of the Act only pertain to free access to meeting space, the provisions of SB 236 apply to both access to methods of promotion and to meeting space accorded to secular student groups. Consequently, McAuliffe's argument that the provisions in SB 236 are redundant and unnecessary due to their already being contained in the federal Equal Access Act is incorrect because the scope of the provisions in the relevant part of SB 236 is much broader than in the Act.

McAuliffe's contention that the provisions of SB 236 pertaining to creating a limited public forum at all school events with a public speaker and prohibiting school officials from blocking students from expressing a religious viewpoint in a speech on an otherwise permissible secular subject, however, is a valid concern and justification for vetoing SB 236, because a credible argument can be made that those provisions in SB 236 would conflict with the US Supreme Court's ruling in Lee v. Weisman.

In Weisman, the court held that having a benediction and invocation as part of a high school graduation ceremony violated the Establishment Clause of the First Amendment to the US Constitution, reasoning that:

The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi's prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

The court then further elaborates on this coercion test:

Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the state may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.

In other words, the court is stating that in public school-sponsored activities, such as high school graduation ceremonies, public school children cannot be placed into circumstances where they can be coerced into going along with overtly religious activity. Although it could be argued that SB 236 is distinguishable in that it requires a letter be sent to parents before any speech with religious content disavowing any school endorsement of the content of the speech, that is likely insufficient because a reasonable observer from the community could still infer that the school approved the content of the speech and the government is providing the platform for the speech, even if the speech is given by a student. Moreover, school officials are barred from regulating the content of the speech, even if a prayer is given by the student during the speech, and such a prayer could include a request by the student for people to bow their heads while the prayer is recited. This would constitute the exact sort of coercion that the court ruled unconstitutional in Weisman. Thus, McAuliffe's concerns that some of the provisions of SB 236 are unconstitutional is well-founded and his veto of the bill was justified.

Michael Blissenbach earned his B.A. in Catholic Studies and Philosophy from the University of St. Thomas. His interests include meteorology, social ethics, bioethics, constitutional law, tax law, religious liberty law and applying Catholic social teaching to law and public policy.

Suggested citation: Michael Blissenbach, An Examination of Governor Terry McAuliffe's Rationale for Vetoing SB 236 , JURIST - Dateline, May 19, 2014, http://jurist.org/dateline/2014/05/michael-blissenbach-school-prayer.php

This article was prepared for publication by Endia Vereen, a Senior Editor for JURIST's Commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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