School unlawfully censors student free speech. - Page 5

Legs · #**101** 06-12-2006, 01:17 AM

That was an awesome post, maddog. Thanks.

maddog · #**102** 06-12-2006, 01:23 AM

Edited to add, w/r/t the "Time, place and manner" restrictions, the necessary proviso that such time, place and manner restrictions must be REASONABLE.

E.g., you could say, "no 'Speakers' Corner' allowed in Picadilly Circus at any time, b/c of traffic concerns," -- that's REASONABLE

but you couldn't say, "you can ONLY have free speech between 2-3 p.m. on Sunday at Hyde Park Corner, but nowhere else, ever." -- that's NOT REASONABLE.

In addition, I have allowed my focus on Adler to cloud my vision about what the operative question is (thus, I'm guilty of the same thing that LionsDen has done, and overlooked the question actually asked): What does Adler mean in terms of the student's speech described in the OP?

In some ways, we don't really have enough information to answer the question. For instance, we don't know, for sure, exactly what the district's policy, in the Colorado/Corder case is. We can make some inferences: For example, Corder was one of 15 "Lewis-Palmer valedictorians," whatever that means. It doesn't appear they were elected, but the method of their selection is unclear. The story also indicates that the district did, or attempted to, exercise control over what was said, and vetted, pre-screened what the students would say beforehand. Manifestly, whatever policy the Colorado district has, it's not a Duval-style policy. It's not clear that Adler v. Duval even applies.

These questions were raised early in the thread:

Quote:

It remains to be seen:

1) Whether anyone was "censored"
2) Whether anything here was "unlawful"
3) Whether students are entitled to unrestricted speech
4) Whether a word of this story is even true

LionsDen opined that, yes, someone was censored. The actual answer is, no, no one was. No one's speech was prohibited or changed by authorities. The student may have been censured afterward, but no one's speech was censored, or at least wasn't shown by the article to be.

LionsDen opined that, yes, something here was unlawful. So far, s/he has not identified what, if anything was unlawful. All that happened was (1) a student lied about what she would say, (2) she gave a religious message, and (3) she was made afterward to send a message elaborating that her religious speech was not approved or sanctioned by the district (government/state). If something about that is unlawful, I would like it clearly articulated and explained.

LionsDen opined that, yes, students are entitled to unrestricted speech. In actuality, as godfry's post about the Hazelwood Sch. Dist. v. Kuhlmeier explained, student speech is not unrestricted. "It depends" on the context.

LionsDen opined that, yes, the story as reported was true. (S/he was also asked whether s/he had any other sources for the story besides the pro-Christian ones. S/he failed to actually answer this question, but vouched for the religious sources. The answer to the question actually asked should have been, "No, I don't have any other sources, but I believe my sources because . . . .") It appears that the gist of the story, at any rate has been reported in a source other than a pro-Christian one. So I think we might take it, tentatively at least, that the story, or its basic outline, is factually true.

I don't know about the withholding of the diploma. That seems wrong to me. If you earned a diploma, you earned it. Making you clarify that the religious message was not sanctioned or condoned by the state seems fair. In terms of the district's power to screen/approve/censor/control student speech, I don't know. The student's liberty is not unrestricted, but the district can only impose reasonable restrictions. I'd have to see the case and the record developed before me. "It's a capital mistake," said Sherlock Holmes, "to theorize in advance of the facts." One thing I DO know -- Adler v. Duval County Sch. Bd. is NOT definitive on the answer.

#762

maddog · #**103** 06-12-2006, 01:37 AM

Edited again to add (aside -- good gravy, never get a lawyer talking about the law, you'll never shut them up!) . . . .

someone remarked early in the thread that, if a school district thinks the Establishment Clause means that no one may ever express a religious idea or pray on school property, then the district is wrong. I agree with this. There is not, and never has been, a prohibition against children praying in school. What is forbidden is government-sponsored, or compulsory religious expression. It's a very complicated and sensitive topic. It depends very much on the circumstances -- who's doing something, what are they doing, and how and when are they doing it. That's probably a whole other thread.

#763

Stephen Maturin · #**104** 06-12-2006, 04:12 AM

My, my, my. I go away for a few days and look what happens.

Quote:

Originally Posted by LionsDen

It has been my experience that Dr James Dobson and Focus on the Family and Mat and Lori Staver are thoroughly trustworthy and honest in all their dealings. I have not known them to lie or deceive. In fact I can assure you that my donations given in Christ's Name would stop immediately if I were to discover them to be liars. And if they were, that fact would have been discovered long ago.

Thoroughly? I wonder about the extent of your experience. As demonstrated by others in this thread, Staver lied in the very article you quoted in your OP. We can discuss Dobson in detail of you'd like, but you may not be equipped to deal with the information you receive.

While we're at it, the Alliance Defense Fund doesn't fare much better. The first ADF article you quoted in Post 59 implies rather strongly that the Supreme Court affirmed Adler on the merits. In truth, the Court simply denied cert, an act that says exactly jack about the merits of the underlying decision per a lengthy and unbroken line of case law.

Quote:

Originally Posted by LionsDen

May I suggest something to help you? Look back over your life to see if you were hurt by a religious person or disappointed and blame God. Consider whether you are projecting your pain and anger onto other people.

You need somebody to listen to you and help you sort through these issues. You need a friend and, respectfully, emotional healing. I hope you find someone to talk to.

All right, that's pretty damn funny. Maybe you're okay after all.

Quote:

Scarlatti - 1) Whether anyone was "censored"

LD - Yes, the student speaker's religious free speech was censored.

As others have already pointed out, after-the-fact sanctions are not censorship.

Today's conservatives are always singing the praises of original intent as a vehicle for interpreting and applying the Constitution. As evidenced by their actions, the people who ratified the Free Speech Clause viewed it as rather toothless, at least post-publication. The primary evil targeted was prior restraint; the powers that be had little problem with imposing punishment after public dissemination. Thus, we saw stuff like the Sedition Act of 1798. It's only through the 20th and 21st Century rulings of judges who modern day conservatives excoriate as "activists" that people such as Erica Corder and the FoF clowns who apparently set all this up can claim any Free Speech Clause protection at all.

Finally, major props to maddog for a thorough and accurate analysis of Adler and for correcting LD's woefully inaccurate statements regarding time, place and manner restrictions. Folks like da dog are the primary reason I'm honored to be part of the profession.

Ari · #**105** 06-12-2006, 04:59 AM

Damn lawyers.

Good synopsis.

On a side, this Liberty Council memo (http://lc.org/Resources/memogradprayer.pdf) appears to show Staver understands the outcome of the Duval case and thus knew his statements about Erica Corder's case were bogus when he said them.

D. Scarlatti · #**106** 06-12-2006, 05:19 AM

To be fair to Mat Staver, I think the case got brought up via LionsDen's reference to some material from the Alliance Defense Fund, which is a separate Christ-centered organ of legal misinformation from Mat's Liberty Counsel.

Mat tends to be a bit less shady and a tad more candid when he's preparing court documents than when he's announcing for Jesus or blogging for Jerry Falwell.

Ari · #**107** 06-12-2006, 05:29 AM

Although the case was brought up by Lion and is from another group, Staver did say,
"What she did was absolutely protected by the Constitution."
"In fact, he said, she was completely within her constitutional rights to say whatever she wanted." (although this wasn't quoted).
Both seem to run contrary to what he states in the memo.

godfry n. glad · #**108** 06-12-2006, 06:20 AM

That was indeed masterful and appreciated, 'dog.

I'm even flattered that you mentioned my mention of Hazelwood. :smugnod:

At this point, this whole affair seems contrived and manipulative.

Wholly Goats · #**109** 06-12-2006, 06:31 AM

I'm still left to wonder how LionsDen and his/her friends at Liberty Counsel would be reacting if a student, one of several delivering a unified speech including all the valevictorians, which was approved by the school administration, for delivery at the graduation ceremonies and the final student not only does not do her agreed upon statements, but instead launches into a 30 second harangue about how everyone in the captive audience should abandon their delusions a beneficient afterlife and an omnipotent, "loving" god that have divided culture against culture for millenia, and how organized religion is a venal mindtrap perpetrated by the elites to control the unthinking and ignorant?

LionsDen · #**110** 06-13-2006, 04:27 AM

Quote:

Originally Posted by maddog

Here is a timeline of the Adler case:

<snip for brevity>

March 15, 2000

Quote:

En banc panel of 11th Cir. holds that the District policy, allowing students to decide whether to have a message at all, and allowing the student to make an urestricted statement, which “may” contain a religious message, does not violate the Establishment Clause on its face.

This is the decision declaring student-led prayer to be constitutional. Bottom line: The policy allowing student-led school graduation prayer and religious speech is constitutionally protected free speech.

June 19, 2000

Quote:

U.S. Supreme Court decides Santa Fe Independent Sch. Dist. v. Doe (2000) 530 U.S. 290 [190 S.Ct. 2266, 147 L.Ed.2d 295], holding that a school district’s policy authorizing high school students to vote to have a student deliver an “invocation and/or message” before home varsity football games violated the Establishment Clause

October 2, 2000

Quote:

The U.S. Supreme Court VACATES the decision in Adler II and remands to the 11th Cir. for reconsideration in light of Santa Fe

Notice the word VACATES. That does NOT meant the decision is overturned. All the Supreme Court did was ask the Appellate Court to rehear the case in light of the Santa Fe case referenced above. The Appellate Court did so, and again ruled the policy allowing student-led school graduation prayer and religious speech is constitutionally protected free speech.

Guess what? This time when the ACLU appealed, the US Supreme Court rejected the ACLU appeal. What does that mean for civil liberties and free speech? It means the policy allowing student-led school graduation prayer and religious speech is constitutionally protected free speech.

May 11, 2001

Quote:

11th Cir. en banc, reinstates its former opinion, after taking consideration of Santa Fe. The 11th Cir. views Santa Fe as distinguishable b/c the district itself had put in place a mechanism (election by students) to allow them to choose to offer a prayer, and to choose who would give the prayer. In addition, the district retained control over content of the “message.”

It means the policy allowing student-led school graduation prayer and religious speech is constitutionally protected free speech.

==

Quote:

When Adler II is read discerningly, it becomes clear that the 11th Cir. expressly limited itself to a facial violation of the Establishment Clause.

Good! But what does that mean to the average reader? It means that on first appearance there is nothing in the school district policy permitting student-led prayer or religious messages that violates the constitution. And what is that policy which has the blessing of federal judges?

Here it is from the decision of the Appellate Court:
At the outset, it is helpful to summarize briefly the facts and analysis of our prior en banc opinion. The Duval County policy provides in relevant part:

"1. The use of a brief opening and/or closing message, not to exceed two minutes, at high school graduation exercises shall rest within the discretion of the graduating senior class;

2. The opening and/or closing message shall be given by a student volunteer, in the graduating senior class, chosen by the graduating senior class as a whole;

3. If the graduating senior class chooses to use an opening and/or closing message, the content of that message shall be prepared by the student volunteer and shall not be monitored or otherwise reviewed by Duval County School Board, its officers or employees;

The purpose of these guidelines is to allow students to direct their own graduation message without monitoring or review by school officials."

206 F.3d at 1072 (emphasis added). We defined the issue then before us as "whether the Duval County school system's policy of permitting a graduating student, elected by her class, to deliver an unrestricted message of her choice at the beginning and/or closing of graduation ceremonies is facially violative of the Establishment Clause." Id. at 1073. Analyzing this policy under the Supreme Court's opinions in Lee v. Weisman, 505 U.S. 577 (1992) and Lemon v. Kurtzman, 403 U.S. 602 (1971), we concluded that the policy did not violate the Establishment Clause on its face.1

It purposely said that its decision had no bearing on any “as applied” challenge to the policy.

No, the ruling does not even mention "as applied" at all! What does this mean to the average reader here? Does it somehow mean that student prayer at graduation is unconstitutional after all? No, it means only that every case stands on its own merits and other cases may apply similar policies differently. But it also means that any school district with the same policy applied the same way as Duval will be able to permit student-initiated, student-led school prayers at graduations! And the ACLU will remain helpless to censor them.

Thus, the ruling is limited indeed. It holds only that, IF a school district has a policy which (1) leaves it entirely up to students whether there will be a student message at all (limited to 2 min), (2) leaves it entirely up to students who will give the message (student volunteer), and (3) leaves it entirely up to the student volunteer concerning the content of the message (no District involvement re: content), THEN, such a policy does not ON ITS FACE violate the Establishment Clause. Part of the key is that the policy itself mentions only a “message,” and not, as in Santa Fe, an “invocation” or “prayer.” ON ITS FACE, therefore, the policy itself is NEUTRAL toward religion.

You are mistaken. Religious speech including proselytism and even prayer are equally included under the word 'message' in other federal and one (I believe) Supreme Court decision concerning free speech by students. There is no difference between a student's message and a prayer or proselytism. All are equally protected. You err.

Further the majority decision for the court held that the Duval policy which permitted student-led prayers is in fact 'neutral'.

Quote:

On March 15, 2000, this Court ruled that Duval County's facially-neutral policy permitting high school seniors to vote upon the delivery by a student of a message entirely of that student's choosing as part of graduation ceremonies did not violate the Establishment Clause. and Second, unlike Santa Fe's policy, the Duval County policy does not "by its terms, invite[] and encourage[] religious messages." 120 S. Ct. at 2277. On the contrary, the policy is entirely neutral regarding whether a message is to be given, and if a message is to be given, the content of that message.

http://pub.bna.com/lw/982709.htm

It is entirely possible that a policy like Duval’s would be vulnerable to an “as applied” challenge. Thus, for example, if it is shown that in practice students only vote to have a message for the purpose of invoking prayers, or that the only (or the primary) purpose the school district has in crafting such a policy IS to permit, promote and advance religion, then the policy could be invalidated “as applied.”

I leave it to science fiction writers and first-yesr law students to speculate about what is or is not 'possible'. But in the real world of settled case law, Duval is currently the gold standard for one federal district.

In addition, Adler II has not been without criticism. In Doe v. Gossage, the Federal District Court (W.D. Ky 2006) 2006 U.S. Dist. LEXIS 34613 remarked that...

<snipped for irrelevance.>

The average reader here will probably have been duped by your reference to the KY ruling. Most probably will not even understand the difference between a federal district court and an appellate court. And they will need an explaination of why your quotation from Gossage is irrelevant at best and misleading at worst.

Federal courts cover small geographic areas. These small courts are overridden by Appellate Courts when they err. Rulings by small courts are NOT binding upon other courts. That is what Gossage was.

Appellate courts, however, are binding upon all smaller courts in their district. That is what Adler was which affirmed the constitutionality of student prayer. That decision binds all courts in their district. KY/Gossage is not in the Adler case appellate district.

The OP case is from Denver, which is an entirely different appellate district.

The Gossage case has not been appealled and carries no weight with any other court. Adler, however, has been reviewed by the US Supreme Court once (and presumeably twice before rejecting the ACLU's appeal to Adler II) and let stand. That is why it carries much greater weight.

I am sure you knew all this and just 'forgot' to tell everyone here on the forum. You didn't actually intend to mislead anyone. That was just an accident by you, right MadDog?

LionsDen has a tendency to overclaim.

He has overclaimed the holding of Adler II.

He has overclaimed the effect of the U.S. Supreme Court’s denial of certiorari in Adler II. It does not mean that the U.S. Supreme Court endorses and has adopted the opinion of the 11th Cir. in Adler II. It means that it let stand the 11th Cir. opinion for the 11th Cir. It could be waiting to see how things develop. (I have personal experience with similar decisions with respect to the California Supreme Court, deciding whether or not to grant review of particular decisions. A court may decide not to grant review for a variety of reasons.)

I think Maddog has a tendency to UNDERCLAIM. Unlike many cases rejected by the Supreme Court, Adler has infact already been examined and vacated in by the Supreme Court in light of another case, Santa Fe. When the Appellate Court agained ruled in favor of the Duval pro-prayer policy, do you really suppose the US Supreme Court didn't notice? Since the Supreme Court considered Adler important enough to consider, might it just be that the Supreme Court's denial of the ACLU's appeal of Adler II carries considerable weight for other appellate courts? Hmmmm... Yes!

LionsDen overclaims the trustworthiness of self-proclaimed Bible believers, for no other reason than that they claim to be such.

I gave several reasons for trusting the veracity of Matt Staver. His personal faith in Christ is one of them. Nothing you have written persuades me otherwise. In fact the errors and omissions in your selection of information suggests that the truth gap lies elsewhere.

He has overclaimed the position of civil libertarians as hostile to religious or conservative speech, when nothing can be further from the truth.

I believe a very persuasive argument can be crafted to so demonstrate. You fail to support your claim.

He overclaims the reach and effect of ethical standards applied to lawyers (“any lawyer who lies about cases even outside of court could be disbarred for false claims [] about cases or fined for a more nebulous charge of general ethics violations. Yes, every state bar has an ethics committee and ethical standards for lawyers are written into state laws. Few people know that.”) It would be extremely difficult to prove the difference between “advocacy” and “misunderstanding” versus “lying” and “general ethics violations.” And, although there are ethical rules against deliberately misrepresenting things to a court, lawyers do it every day and are hardly ever remarked-upon, much less disciplined, and certainly not disbarred. I challenge LionsDen to name an instance in which a lawyer was disbarred for misrepresenting the holding of a case, outside of court. (See, e.g., Montag v. State Bar (1982) 32 Cal.3d 721 [atty suspended for 1 year for lying to grand jury]; In re Mostman (1989) 47 Cal.3d 725 [atty suspended for 2 years, but not disbarred, for soliciting murder of a client].)

I suspect you are out of touch with your own states ethical standards as well as those of other states. Did you know that in one state, Minnesota, a state Supreme Court candidate was disbarred because of something his WIFE said! I suppose there are other examples. Suffice it to say that Jesus Christ calls Christians - and Christian lawyers - to a higher standard. I still have yet to hear any so-called examples of lying by Matt Staver or Jay Sekuow and other bornagain Christ-honoring civil liberties lawyers. Perhaps there are only rumors and inuendos from the anti-religious left after losing so many cases to these attornies.

#760

...

D. Scarlatti · #**111** 06-13-2006, 05:20 AM

Quote:

Originally Posted by LionsDen

No, the ruling does not even mention "as applied" at all!

See footnote 1 at 1332.

Quote:

What does this mean to the average reader here?

It means you're wrong. The Adler court(s) "expressly declined" to address any potential as-applied challenges, exactly as maddog carefully explained.

D. Scarlatti · #**112** 06-13-2006, 06:17 AM

Quote:

Originally Posted by LionsDen

The average reader here will probably have been duped by your reference to the KY ruling. Most probably will not even understand the difference between a federal district court and an appellate court.

You gravely underestimate the sophistication of your audience here, Mr. Den.

Quote:

And they will need an explanation of why your quotation from Gossage is irrelevant at best and misleading at worst.

A direct analysis by a federal court of another federal court's decision is never irrelevant, especially when one of the parties to the former attempts to put it to use in support of its (losing) argument.

And in this instance it was hardly misleading, since maddog referred to its "criticism" of Adler, which is precisely what it is, a criticism of Adler. So there is nothing either irrelevant or misleading about maddog's citation to the case.

Quote:

Federal courts cover small geographic areas. These small courts are overridden by Appellate Courts when they err. Rulings by small courts are NOT binding upon other courts. That is what Gossage was.

Now this is misleading. Gossage is every bit as persuasive outside its jurisdiction as Adler is outside its. Nobody suggested it was binding elsewhere. Your attempts to disparage Gossage have failed.

As has already been noted by at least three posters thus far, the Supreme Court's decision to deny certiorari to the appeal of Adler's most recent incarnation says nothing about its merits, nor does it confer any sort of extra special cachet on it.

The only thing your suggestions have going for them is that the 11th Circuit represents a larger geographical area than does the Western District of Kentucky.

Quote:

Appellate courts, however, are binding upon all smaller courts in their district. That is what Adler was which affirmed the constitutionality of student prayer. That decision binds all courts in their district. KY/Gossage is not in the Adler case appellate district.

Now this is irrelevant, however true it may be generally.

Quote:

The OP case is from Denver, which is an entirely different appellate district.

Meaning, according to your own helpful explanations, that Adler is merely persuasive authority within the 10th Circuit, just as Gossage is. In other words, Gossage carries the same weight in Colorado as does Adler.

So how is it that Gossage is "irrelevant" or "misleading" again?

Quote:

The Gossage case ... carries no weight with any other court.

Patently untrue. We will see, the next time one of your Christ-centered law societies encounters it outside (or perhaps even within) the 11th Circuit. In the meantime I suggest you refrain from denigrating first-year law students (go ahead and denigrate science fiction writers) until you can demonstrate a bit more candor with respect to how legal authority does and does not apply across jurisdictions.

Quote:

I am sure you knew all this and just 'forgot' to tell everyone here on the forum. You didn't actually intend to mislead anyone. That was just an accident by you, right MadDog?

I sincerely hope maddog addresses this not-so-subtle innuendo.

Quote:

Did you know that in one state, Minnesota, a state Supreme Court candidate was disbarred because of something his WIFE said!

Do you have a citation to this?

maddog · #**113** 06-13-2006, 02:52 PM

Quote:

Originally Posted by maddog

March 15, 2000

Quote:

En banc panel of 11th Cir. holds that the District policy, allowing students to decide whether to have a message at all, and allowing the student to make an urestricted statement, which “may” contain a religious message, does not violate the Establishment Clause on its face.

Quote:

Originally Posted by LionsDen

This is the decision declaring student-led prayer to be constitutional. Bottom line: The policy allowing student-led school graduation prayer and religious speech is constitutionally protected free speech [emphasis added].

Making statements about the law requires more care, LionsDen.

One reason the Adler II court came to its decision is that it is, and always has been, the case that individual, voluntary religious belief or exercise is not within the reach of the Establishment Clause. The Establishment Clause, by definition, concerns governmental or state, not private, individual, action.

Second, be careful of your sentence construction, as indicated by the underlining above. It is not the POLICY which is “constitutionally protected free speech.” It is the speech itself, which is or may be constitutionally protected. But, it is far more accurate to describe the court’s opinion, as I have done, as ruling that the policy was not found to violate the Establishment Clause on its face.

Quote:

Originally Posted by maddog

June 19, 2000

Quote:

U.S. Supreme Court decides Santa Fe Independent Sch. Dist. v. Doe (2000) 530 U.S. 290 [190 S.Ct. 2266, 147 L.Ed.2d 295], holding that a school district’s policy authorizing high school students to vote to have a student deliver an “invocation and/or message” before home varsity football games violated the Establishment Clause

October 2, 2000

Quote:

The U.S. Supreme Court VACATES the decision in Adler II and remands to the 11th Cir. for reconsideration in light of Santa Fe

Quote:

Originally Posted by LionsDen

Notice the word VACATES. That does NOT meant the decision is overturned.

I believe you are mistaken, LionsDen.

The FindLaw online legal dictionary defines “vacate” as “1. To make void: ‘annul’ ‘set aside.’ [Para.] Example: vacate a lower court order.”

I don’t know about you, LionsDen, and perhaps the problem lies in the lack of precision in the term “overturn,” but it seems to me that if the United States Supreme Court makes void a lower court decision, or annuls the lower court’s decision, or sets aside the lower court’s decision, then that decision has been “overturned.” It is null (the exact meaning of “annulled”), it is void (the exact meaning of to “make void”), it is of no effect, it is as if that lower court decision had never been made, and the court must begin anew to reconsider its decision.

Quote:

Originally Posted by LionsDen

All the Supreme Court did was ask the Appellate Court to rehear the case in light of the Santa Fe case referenced above.

Yes, that’s “all” the Supreme Court did. It did so by VACATING, i.e., making void, annulling, setting aside – overturning – the earlier 11th Cir. Decision. The 11th Cir. had to consider the case anew, from the beginning, and to take account of Santa Fe. Which it did.

Quote:

Originally Posted by LionsDen

The Appellate Court did so, and again ruled the policy allowing student-led school graduation prayer and religious speech is constitutionally protected free speech.

More precisely, the 11th Cir. again ruled that the policy did not facially violate the Establishment Clause.

Quote:

Originally Posted by LionsDen

Guess what? This time when the [plaintiffs] appealed, the US Supreme Court rejected [their] appeal. What does that mean for civil liberties and free speech? It means the policy allowing student-led school graduation prayer and religious speech is constitutionally protected free speech.

Respectfully, this is not quite accurate, LionsDen.

There is no right of appeal to the United States Supreme Court. Review by the Supreme Court is discretionary. The party may petition for review, or certiorari. The United States Supreme Court denied a petition for discretionary review. What does this mean? It means that, within the 11th Cir., Adler II stands. It is binding authority within the 11th Cir. As to what it means as a pronouncement by the United States Supreme Court, it means NOTHING W/R/T THE MERITS.

This principle has been pointed out to you before. The denial of certiorari, or writ of review, IS NOT an indication of ANYTHING with respect to the high court’s views of the MERITS of the suit. (Citations below.)

Quote:

Originally Posted by maddog

May 11, 2001

Quote:

11th Cir. en banc, reinstates its former opinion, after taking consideration of Santa Fe. The 11th Cir. views Santa Fe as distinguishable b/c the district itself had put in place a mechanism (election by students) to allow them to choose to offer a prayer, and to choose who would give the prayer. In addition, the district retained control over content of the “message.”

Quote:

Originally Posted by LionsDen

It means the policy allowing student-led school graduation prayer and religious speech is constitutionally protected free speech.

Respectfully, LionsDen, I believe you might have misunderstood what I have said here. My remarks may not have been wholly clear, but the just-quoted box was intended to describe Santa Fe, not Adler II. What made the school district’s policy IMPERMISSIBLE in Santa Fe was, in part, an election mechanism, which allowed the majority to impose religious speech on the minority. What made the school district’s policy IMPERMISSIBLE in Santa Fe was, in part, expressly permitting the elected student to offer a prayer or invocation. Because the policy in Santa Fe EXPRESSLY proffered prayer as one of the listed choices, its policy was not “neutral” toward religion. The express purpose of the school district (the government) was manifestly to promote religious exercise. What made the school district’s policy IMPERMISSIBLE in Santa Fe was, in part, the school’s retention of some editorial control over the content of the speech. When the government controls the speech, the content of the speech is, or may reasonably be perceived as, being government-sponsored. And government may not sponsor religion. That is precisely what the Establishment Clause forbids.

And, once more, the more accurate way to state the 11th Cir. holding in Adler II is that the district’s policy did not, as framed, facially violate the Establishment Clause.

Quote:

Originally Posted by maddog

When Adler II is read discerningly, it becomes clear that the 11th Cir. expressly limited itself to a facial violation of the Establishment Clause.

Quote:

Originally Posted by LionsDen

Good! But what does that mean to the average reader?

The “average reader” may not understand the actual import of what the court has said, as you are yourself demonstrating here.

Quote:

Originally Posted by LionsDen

It means that on first appearance there is nothing in the school district policy permitting student-led prayer or religious messages that violates the constitution.

That’s a good effort, but I think it is even more subtle than that. It means that the words of the policy themselves, on their face, do not directly address, promote or advocate religious speech. If the policy DID expressly PERMIT prayer or religious speech, it would be parallel to Santa Fe, and would violate the Establishment Clause. It is precisely because the policy itself SAYS NOTHING about religious speech or prayer that the Adler II court can say that it is “on its face” – in its words – neutral (saying nothing) w/r/t religion.

Quote:

Originally Posted by LionsDen

And what is that policy which has the blessing of federal judges?

Here it is from the decision of the Appellate Court:

Quote:

At the outset, it is helpful to summarize briefly the facts and analysis of our prior en banc opinion. The Duval County policy provides in relevant part:

"1. The use of a brief opening and/or closing message, not to exceed two minutes, at high school graduation exercises shall rest within the discretion of the graduating senior class;

2. The opening and/or closing message shall be given by a student volunteer, in the graduating senior class, chosen by the graduating senior class as a whole;

3. If the graduating senior class chooses to use an opening and/or closing message, the content of that message shall be prepared by the student volunteer and shall not be monitored or otherwise reviewed by Duval County School Board, its officers or employees;

The purpose of these guidelines is to allow students to direct their own graduation message without monitoring or review by school officials."

206 F.3d at 1072 (emphasis added). We defined the issue then before us as "whether the Duval County school system's policy of permitting a graduating student, elected by her class, to deliver an unrestricted message of her choice at the beginning and/or closing of graduation ceremonies is facially violative of the Establishment Clause." Id. at 1073. Analyzing this policy under the Supreme Court's opinions in Lee v. Weisman, 505 U.S. 577 (1992) and Lemon v. Kurtzman, 403 U.S. 602 (1971), we concluded that the policy did not violate the Establishment Clause on its face.1

That is NOT to say that merely adopting such a policy will, in every case, pass constitutional muster. It depends on the purpose for which such a policy is adopted, and, even when a policy itself does not facially violate the Establishment Clause, it might still be vulnerable to an “as applied” challenge.

Quote:

Originally Posted by maddog

It purposely said that its decision had no bearing on any “as applied” challenge to the policy.

Quote:

Originally Posted by LionsDen

No, the ruling does not even mention "as applied" at all!

Respectfully, LionsDen, you are mistaken. Here is the quotation from the Adler II opinion:

Quote:

” We expressly declined to consider at that time any as-applied objection to the policy's constitutionality. 206 F.3d at 1073 n.4 ("We do not address any potential 'as-applied' claims raised below by Appellants."). Accordingly, we did not consider Appellants' objections regarding the policy's alleged application after 1993. Nothing in Santa Fe in any way affects that decision or supports consideration of Appellants' as-applied challenges now.

The citation is Adler v. Duval County Sch. Bd., supra, 250 F.3d 1330, 1331, footnote 1. BTW, LionsDen, that is the “1” numeral which closes your quotation from Adler II, which I highlighted above – the footnote numeral. Manifestly, the Adler II court DID expressly say that it was not considering the plaintiffs’ “as applied” challenges. I think you owe me an apology here, LionsDen.

Quote:

Originally Posted by LionsDen

What does this mean to the average reader here?

Again, it is not the understanding of the “average reader” which controls. “Average readers,” including laypersons, often misunderstand the import of legal rulings.

Quote:

Originally Posted by LionsDen

Does it somehow mean that student prayer at graduation is unconstitutional after all? No, it means only that every case stands on its own merits and other cases may apply similar policies differently.

Respectfully, LionsDen, I think you may not clearly understand the legal terminology of a “facial” constitutional challenge and an “as applied” challenge. When the Adler II court stated, plainly, that it was not considering any “as applied” challenges to the District’s policy, it meant exactly what it said. It could not rule in advance of an actual case or controversy over how the District’s policy was actually being applied. So, COULD it mean that the District’s policy, “as applied,” – even how Duval applies THIS VERY POLICY – could violate the Constitution after all? The answer to that question is, “YES.” Mind, I am not saying that it is NECESSARILY so … the as-applied challenge might also fail. But when the court says that it is making no pronouncement on the constitutionality of a policy “as applied,” it means precisely that: it is making NO RULING on that issue. Which means that, WHEN it gets an “as applied” case under the policy, the ruling could go either way. The result of any such future case depends on – what you would expect – how Duval APPLIES its policy. The policy could be applied in such a way that, indeed, “student prayer at graduation is unconstitutional after all.”

Quote:

Originally Posted by LionsDen

But it also means that any school district with the same policy applied the same way as Duval will be able to permit student-initiated, student-led school prayers at graduations!

Not necessarily, LionsDen. The holding in Adler II is quite narrow. It said so itself:

Quote:

We closed our prior en banc opinion by defining our holding narrowly, stating that Duval County's policy of "permitting graduating students to decide through a vote whether to have an unrestricted student graduation message at the beginning and/or closing of graduation ceremonies does not facially violate the Establishment Clause." Id. at 1091 (emphasis added).

Since the Adler II court reinstated its former opinion, its reinstated opinion was equally narrow. That is, it was a holding concerning facial validity only.

LionsDen, you seem to be saying that “apply[ing] [the same policy] the same way as Duval” will be constitutional, but that is exactly what the Adler II court EXPRESSLY stated that its ruling DID NOT REACH -- the issue of HOW DUVAL APPLIED ITS POLICY. It made a ruling on FACIAL constitutionality ONLY.

It is not even necessarily the case that any and every school district adopting an identical policy will be able to pass a facial validity challenge. Remember, the Adler II court made clear that it discerned no impermissible purpose of the District in adopting the policy.

Quote:

We also noted that the text of the policy did not reveal a religious purpose, and that the limited pieces of background evidence highlighted for the contention that the policy's secular purpose was a sham could not "strip the policy of its secular purpose. No matter what an individual board member may have hoped -- and they said nothing on the record about codifying this policy -- Duval County's policy is facially neutral and undeniably evinces a secular purpose."

(Adler II, supra, 250 F.3d 1330, 1334.) The text of the policy itself did not demonstrate a religious purpose, the limited outside evidence was insufficient to show a religious purpose, and (remember, the policy was never voted upon!) no statements were made on a record and no votes taken which would demonstrate an intent to codify a purpose to promote religion. Any other school district, even if it adopts an identical policy (in a way, the Duval district never actually “adopted” the policy, b/c it was never voted upon), could have different evidence concerning the purpose for which the policy is adopted.

Quote:

Originally Posted by LionsDen

And the ACLU will remain helpless to censor them.

This seems to me to be a gratuitous slap, and inconsistent with your professed virtues of treating others respectfully, and not spreading lies about others. Civil liberty groups like the ACLU promote civil liberties, including free speech and free exercise of religion. The ACLU does not censor anyone. To suggest otherwise is simply untrue.

Quote:

Originally Posted by maddog

Thus, the ruling is limited indeed. It holds only that, IF a school district has a policy which (1) leaves it entirely up to students whether there will be a student message at all (limited to 2 min), (2) leaves it entirely up to students who will give the message (student volunteer), and (3) leaves it entirely up to the student volunteer concerning the content of the message (no District involvement re: content), THEN, such a policy does not ON ITS FACE violate the Establishment Clause. Part of the key is that the policy itself mentions only a “message,” and not, as in Santa Fe, an “invocation” or “prayer.” ON ITS FACE, therefore, the policy itself is NEUTRAL toward religion.

Quote:

Originally Posted by LionsDen

You are mistaken. Religious speech including proselytism and even prayer are equally included under the word 'message' in other federal and one (I believe) Supreme Court decision concerning free speech by students. There is no difference between a student's message and a prayer or proselytism. All are equally protected. You err.

Respectfully, LionsDen, I believe you have misconstrued the import of what I (and the Adler II court) have said.

IF the district’s policy had specifically named and indicated its purpose to permit students to pray, or have an invocation, or to proselytize, THEN it would fall within the holding of Santa Fe. In Santa Fe, you will recall, the United States Supreme Court had held that it VIOLATED the Establishment Clause to have a policy permitting students to elect a student to give a prayer or invocation. Unlike Adler II, the TEXT of a policy which expressly mentions and promotes prayer, or an “invocation” is NOT NEUTRAL toward religion.

I have said nothing about what the word (TEXT) limited to “message” might mean.

Please cite the United States Supreme Court and the lower federal court student speech cases to which you refer. I do not know the context in which they arose.

Quote:

Originally Posted by LionsDen

Further the majority decision for the court held that the Duval policy which permitted student-led prayers is in fact 'neutral'.

This is exactly where it is important to be careful, LionsDen. Your use of language here is not precise. The Duval policy SAYS NOTHING about “permitting prayer.” Had it done so, it would have run afoul of Santa Fe. It is only because the Duval policy DOES NOT expressly “permit prayer” that it can be regarded as “neutral” on the question of promoting religion. If it were manifest that the District’s PURPOSE in adopting the policy was TO PERMIT PRAYER, that would be unconstitutional, as an establishment of religion.

Quote:

On March 15, 2000, this Court ruled that Duval County's facially-neutral policy permitting high school seniors to vote upon the delivery by a student of a message entirely of that student's choosing as part of graduation ceremonies did not violate the Establishment Clause. and Second, unlike Santa Fe's policy, the Duval County policy does not "by its terms, invite[] and encourage[] religious messages." 120 S. Ct. at 2277. On the contrary, the policy is entirely neutral regarding whether a message is to be given, and if a message is to be given, the content of that message.

Quote:

Originally Posted by =maddog

It is entirely possible that a policy like Duval’s would be vulnerable to an “as applied” challenge. Thus, for example, if it is shown that in practice students only vote to have a message for the purpose of invoking prayers, or that the only (or the primary) purpose the school district has in crafting such a policy IS to permit, promote and advance religion, then the policy could be invalidated “as applied.”

Quote:

Originally Posted by LionsDen

I leave it to science fiction writers and first-yesr [ sic ] law students to speculate about what is or is not 'possible'. But in the real world of settled case law, Duval is currently the gold standard for one federal district.

Is this how you exercise your claimed principle of treating other people respectfully?

In the “real world” of “settled” case law, Adler II is a very narrow holding. The court said so itself. It addresses only a facial challenge to one particular policy. It is binding only in the 11th Cir.

Quote:

Originally Posted by maddog

In addition, Adler II has not been without criticism. In Doe v. Gossage, the Federal District Court (W.D. Ky 2006) 2006 U.S. Dist. LEXIS 34613 remarked that...

Quote:

Originally Posted by LionsDen

We may disagree about the relevance or irrelevance of the quotation(s) from Gossage. My point was to show that Adler II does not command universal agreement, and to demonstrate some of the reasoning why that may be the case.

Quote:

Originally Posted by LionsDen

The average reader here will probably have been duped by your reference to the KY ruling. Most probably will not even understand the difference between a federal district court and an appellate court. And they will need an explaination [ sic ] of why your quotation from Gossage is irrelevant at best and misleading at worst.

This is nothing but character assassination. Again, you owe me an apology.

I have duped no one, and I have said nothing that is untrue.

I have not said, implied or claimed that Gossage is authoritative beyond its jurisdiction. I have said that Gossage criticized Adler II. Shepard’s, the official citation service, says so. The signal it gives is that Gossage criticizes Adler II. Which, indeed, it does. All I have done is to elucidate some of the ground of that criticism. Adler II is not binding upon the Gossage court. Neither is Gossage binding upon the 11th Cir., or upon any court.

That a court opinion is not binding authority does not, however, rob it of whatever persuasive value it may have. (Cf., e.g., People v. Crittenden (1994) 9 Cal.4th 83, 120 [in state court, decisions of the lower federal courts provide persuasive, although not binding, authority]; accord Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1441 [Decisions of the lower federal courts on federal questions are persuasive but not binding on state courts].)

Contrary to your apparent view, I believe that most people DO know and understand that trial courts (federal district courts) are lower courts with limited jurisdiction, that intermediate appellate courts (Circuit Court of Appeals) are a higher level, and their rulings are binding upon the trial courts within their same jurisdiction (and not binding on either lower or equal courts in other jurisdictions), and that the jurisdiction of the United States Supreme Court reaches the whole country.

Quote:

Originally Posted by LionsDen

Federal [district] courts cover small geographic areas. These small courts are overridden by Appellate Courts when they err. Rulings by small courts are NOT binding upon other courts. That is what Gossage was.

Yes, Gossage was a federal district court case. The citation I provided made that perfectly clear. That a trial court decision is not binding precedent is not news. I never said that it was. But it might be persuasive if its reasoning is sound. All I did was to point out that there are competing views about the constitutional validity of a policy like the Duval district’s policy.

Quote:

Originally Posted by LionsDen

Appellate courts, however, are binding upon all smaller courts in their district. That is what Adler was . . .

Yes. Adler II is binding precedent upon the trial courts within its geographical jurisdiction. It is not, however, binding upon any other court, federal or state. It may be persuasive, but that is exactly the same position in which the Gossage opinion stands: it may or may not be persuasive. What Gossage DOES show is that the question is not definitively settled.

Quote:

Originally Posted by LionsDen

. . . which affirmed the constitutionality of student prayer.

I think I disagree. Again, it is important to be careful in the use of language: it did not “affirm the constitutionality of student prayer” as such. It affirmed the FACIAL constitutionality of a POLICY that SAID AND DID NOTHING on the issue of student prayer.

Quote:

Originally Posted by LionsDen

That decision binds all courts in their district. KY/Gossage is not in the [/I]Adler[/I] case appellate district.

The OP case is from Denver, which is an entirely different appellate district.

Correct.

Quote:

Originally Posted by LionsDen

The Gossage case has not been appealled [ sic ] and carries no weight with any other court.

If you mean that it is not binding on any other court, you are correct. If you mean that it cannot be considered as persuasive authority, I believe that is not correct. It may be considered by other courts, federal or state, for whatever value it may have in its persuasion/reasoning.

Quote:

Originally Posted by LionsDen

Adler, however, has been reviewed by the US Supreme Court once (and presumeably [ sic ] twice before rejecting the … appeal to Adler II) and let stand. That is why it carries much greater weight.

You must tread carefully, LionsDen. The United States Supreme Court has NEVER reviewed the substantive MERITS of either Adler I or Adler II. Rather, it VACATED one en banc opinion in Adler II, and remanded for reconsideration in light of Santa Fe. In so doing, it expressed NO OPINION on the merits of the Adler II case itself. Then, it DENIED CERTIORARI, i.e., refused to take jurisdiction, of Adler II after the en banc rehearing opinion was issued.

Adler II has some precedential value – within the 11th Cir. Otherwise, it stands on exactly the same footing as Gossage: It may or may not be persuasive on the issue faced in another case, in another jurisdiction. It does not have “greater weight” outside its geographical jurisdiction, either because it is a “higher” court than the district court in Gossage, or because the Supreme Court has let it stand. To the extent you mean to suggest that the Supreme Court has put an imprimatur of approval on Adler II, by reason of its denial of certiorari, you are incorrect. A denial of certiorari, or review, means nothing w/r/t the Supreme Court’s view of the merits of a case. (Citations below.)

Quote:

Originally Posted by LionsDen

I am sure you knew all this and just 'forgot' to tell everyone here on the forum. You didn't actually intend to mislead anyone. That was just an accident by you, right MadDog?

This innuendo is pure insult, patently false, and most certainly no “accident.” Yet again, you owe me an apology.

I made no misrepresentations. I hid nothing. I gave citations and full disclosure. I made no overbroad claims about what any case held, or what its precedential value is. That a layperson may misunderstand the nuances of stare decisis is forgivable and not surprising, but the misunderstanding of stare decisis is not mine. To persist in a mistaken view after explanation and correction is less pardonable.

Quote:

Originally Posted by maddog

LionsDen has a tendency to overclaim.

[S/he] has overclaimed the holding of Adler II.

[S/he] has overclaimed the effect of the U.S. Supreme Court’s denial of certiorari in Adler II. It does not mean that the U.S. Supreme Court endorses and has adopted the opinion of the 11th Cir. in Adler II. It means that it let stand the 11th Cir. opinion for the 11th Cir. It could be waiting to see how things develop. (I have personal experience with similar decisions with respect to the California Supreme Court, deciding whether or not to grant review of particular decisions. A court may decide not to grant review for a variety of reasons.)

Quote:

Originally Posted by LionsDen

I think Maddog has a tendency to UNDERCLAIM. Unlike many cases rejected by the Supreme Court, Adler has infact [ sic ] already been examined and vacated in by the Supreme Court in light of another case, Santa Fe.

The United States Supreme Court VACATED, set aside, made void, and annulled the 11th Cir. court’s 2000 en banc opinion. That is NOT a “review” or “examination” on the MERITS. The 11th Cir. was directed to, and DID, reexamine the case before it in light of Santa Fe. The 11th Cir. court’s decision on rehearing IS on the merits. What the Supreme Court did, before and after, WAS NOT.

Quote:

Originally Posted by LionsDen

When the Appellate Court agained [ sic ] ruled in favor of the Duval pro-prayer policy [ sic ] , …

LionsDen, did you read Santa Fe? If you had, and understood what you read, and if you read Adler II, and understood what you read, you should understand that the ONLY reason the Adler II was able to reach the result it did – upholding the Duval district’s “policy” ON ITS FACE – is that it ABSOLUTELY WAS NOT a ”pro-prayer policy.” If the policy were expressly or impliedly PRO-PRAYER, then it would and could not be NEUTRAL on the question of religion or prayer. It would, instead, be a policy which has the purpose of PROmoting PRAYER (religion), which is the very thing the Establishment Clause forbids a school district (government) to do.

Quote:

Originally Posted by LionsDen

… do you really suppose the US Supreme Court didn't notice? Since the Supreme Court considered Adler important enough to consider, might it just be that the Supreme Court's denial of the [petition for certiorari in] Adler II carries considerable weight for other appellate courts? Hmmmm... Yes!

LionsDen, the answer to your layperson’s speculation is, resoundingly, “NO.” Denial of certiorari, denial of discretionary review, MEANS NOTHING about the Supreme Court’s view of the merits of the issue. It ADDS NOTHING to the precedential weight of the case denied review. You don’t have to take my word for it; you can take the Supreme Court’s own word on it:

(here are the promised citations: Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati (1998) 525 U.S. 943, 142 L. Ed. 2d 302, 119 S. Ct. 365, opn. of Stevens, J., on denial of cert. [“the denial of a petition for a writ of certiorari is not a ruling on the merits. [Fn. omitted.] Sometimes such an order reflects nothing more than a conclusion that a particular case may not constitute an appropriate forum in which to decide a significant issue”]; [I] Brown v. Texas[I] (1997) 118 S. Ct. 355, 356, opn. of Stevens, J. on denial of cert. [“the Court's action in denying certiorari does not constitute either a decision on the merits of the questions presented, see Singleton v. Commissioner, 439 U.S. 940, 942, 58 L. Ed. 2d 335, 99 S. Ct. 335 (1978) (opinion of Stevens, J., respecting denial of certiorari), or an appraisal of their importance. Moreover, as was true of the underlying issue raised in three related cases in 1983, [fn. omitted] and resolved three years later in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the likelihood that the issue will be resolved correctly may increase if this Court allows other tribunals "to serve as laboratories in which the issue receives further study before it is addressed by this Court” ]; Lackey v. Texas (1995) 514 U.S. 1045, 1047, 131 L. Ed. 2d 304, 115 S. Ct. 1421 [similar]; Tennessee v. Barber (1995) 513 U.S. 1184, 1184, 130 L. Ed. 2d 1129, 115 S. Ct. 1177 [similar].)
Here is a more detailed explanation:

Quote:

Originally Posted by Justice Stevens, on denial of petition for certiorari in Singleton v. Commissioner (1978) 439 U.S. 940, 942-946, 58 L. Ed. 2d 335, 99 S. Ct. 335

What is the significance of this Court's denial of certiorari? That question is asked again and again; it is a question that is likely to arise whenever a dissenting opinion argues that certiorari should have been granted. Almost 30 years ago Mr. Justice Frankfurter provided us with an answer to that question that should be read again and again.

"This Court now declines to review the decision of the Maryland Court of Appeals. The sole significance of such denial of a petition for writ of certiorari need not be elucidated to those versed in the Court's procedures. It simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter 'of sound judicial discretion.' Rule 38, paragraph 5. A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result. This is especially true of petitions for review on writ of certiorari to a State court. Narrowly technical reasons may lead to denials. Review may be sought too late; the judgment of the lower court may not be final; it may not be the judgment of a State court of last resort; the decision may be supportable as a matter of State law, not subject to review by this Court, even though the State court also passed on issues of federal law. A decision may satisfy all these technical requirements and yet may commend itself for review to fewer than four members of the Court. Pertinent considerations of judicial policy here come into play. A case may raise an important question but the record may be cloudy. It may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening.

"Since there are these conflicting and, to the uninformed, even confusing reasons for denying petitions for certiorari, it has been suggested from time to time that the Court indicate its reasons for denial. Practical considerations preclude. In order that the Court may be enabled to discharge its indispensable duties, Congress [**338] has placed the control of the Court's business, in effect, within the Court's discretion. During the last three terms the Court disposed of 260, 217, 224 cases, respectively, on their merits. For the same three terms the Court denied, respectively, 1,260, 1,105, 1,189 petitions calling for discretionary review. If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive, apart from the fact as already indicated that different reasons not infrequently move different members of the Court in concluding that a particular case at a particular time makes review undesirable. It becomes relevant here to note that failure to record a dissent from a denial of a petition for writ of certiorari in nowise [*944] implies that only the member of the Court who notes his dissent thought the petition should be granted.

"Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated." Opinion respecting the denial of the petition for writ of certiorari in Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-919.

When those words were written, Mr. Justice Frankfurter and his colleagues were too busy to spend their scarce time writing dissents from denials of certiorari. Such opinions were almost nonexistent. n1 It was then obvious [***337] that if there was no need to explain the Court's action in denying the writ, there was even less reason for individual expressions of opinion about why certiorari should have been granted in particular cases.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 There were none in 1945 or 1946, and I have been able to find only one in the 1947 Term. See dissent in Chase National Bank v. Cheston, and companion cases, 332 U.S. 793, 800.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Times have changed. Although the workload of the Court has dramatically increased since Mr. Justice Frankfurter's day, n2 most present Members of the Court frequently file written dissents from certiorari denials. It is appropriate to ask whether the new practice serves any important goals or contributes to the strength of the institution.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 By way of comparison to the figures cited by Mr. Justice Frankfurter, the Court during the three most recent Terms reviewed and decided 362, 483, and 323 cases respectively. And during each of these Terms, the Court denied certiorari in well over 3,000 cases.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

One characteristic of all opinions dissenting from the denial of certiorari is manifest. They are totally unnecessary. They [*945] are examples of the purest form of dicta, since they have even less legal significance than the orders of the entire Court which, as Mr. Justice Frankfurter reiterated again and again, have no precedential significance at all.

Another attribute of these opinions is that they are potentially misleading. Since the Court provides no explanation of the reasons for denying certiorari, the dissenter's arguments in favor of a grant are not answered and therefore typically appear to be more persuasive than most other opinions. Moreover, since they often omit any reference to valid reasons for denying certiorari, they tend to imply that the Court has been unfaithful to its responsibilities or has implicitly reached a decision on the [**339] merits when, in fact, there is no basis for such an inference.

In this case, for example, the dissenting opinion suggests that the Court may have refused to grant certiorari because the case is "devoid of glamour and emotion." I am puzzled by this suggestion because I have never witnessed any indication that any of my colleagues has ever considered "glamour and emotion" as a relevant consideration in the exercise of his discretion or in his analysis of the law. With respect to the Court's action in this case, the absence of any conflict among the Circuits is plainly a sufficient reason for denying certiorari. Moreover, in allocating the Court's scarce resources, I consider it entirely appropriate to disfavor complicated cases which turn largely on unique facts. A series of decisions by the courts of appeals may well provide more meaningful guidance to the bar than an isolated or premature opinion of this Court. As Mr. Justice Frankfurter reminded us, "wise adjudication has its own time for ripening."

Admittedly these dissenting opinions may have some beneficial effects. Occasionally a written statement of reasons for granting certiorari is more persuasive than the Justice's oral contribution to the Conference. For that reason the written document sometimes persuades other Justices to change their [*946] votes and a petition is granted that would otherwise have been denied. That effect, however, merely justifies the writing and circulating of these memoranda within the Court; it does not explain why a dissent which has not accomplished its primary mission should be published.

It can be argued that publishing these dissents enhances the public's understanding of the work of the Court. But because they are so seldom answered, these opinions may also give rise to misunderstanding or incorrect impressions about how the Court actually works. Moreover, the selected bits of information which they reveal tend to compromise the otherwise secret deliberations in our Conferences. There are those who believe that these Conferences should be conducted entirely in public or, at the very least, that the votes on all Conference matters should be publicly recorded. The traditional view, which I happen to share, is that confidentiality makes a valuable contribution to the full and frank exchange of views during the decisional process; such confidentiality is especially valuable in the exercise of the kind of discretion that must be employed in processing the thousands of certiorari petitions that are reviewed each year. In my judgment, the importance of preserving the tradition of confidentiality outweighs the minimal educational value of these opinions.

In all events, these are the reasons why I have thus far resisted the temptation to publish opinions dissenting from denials of certiorari.

Thus, when the Supreme Court denies certiorari IT MEANS NOTHING about the merits of the issue. The denial of certiorari in Adler II ABSOLUTELY DOES NOT MEAN that the Supreme Court has hinted anything to other appellate courts, or to anyone, about the merits of the claim. It has not tacitly approved or put its imprimatur on the result in Adler II.

Quote:

Originally Posted by LionsDen

… Suffice it to say that Jesus Christ calls Christians - and Christian lawyers - to a higher standard. …

Then I fully expect you will correct your mistakes, retract your inaccurate statements, and apologize for the unwarranted and scurrilous attacks on me. Mind you, though, I do not consider this a “higher” standard. I consider it a normal one.
#765

viscousmemories · #**114** 06-13-2006, 06:18 PM

Thanks for the extraordinary posts, maddog. You really make the issues crystal clear.

godfry n. glad · #**115** 06-13-2006, 08:45 PM

Quote:

Originally Posted by viscousmemories

Thanks for the extraordinary posts, maddog. You really make the issues crystal clear.

Ramen!

LionsDen · #**116** 06-14-2006, 02:53 AM

Quote:

LionsDen wrote: Notice the word VACATES. That does NOT meant the decision is overturned.

To which Maddog replied:

I believe you are mistaken, LionsDen.

The FindLaw online legal dictionary defines “vacate” as “1. To make void: ‘annul’ ‘set aside.’ [Para.] Example: vacate a lower court order.”

I don’t know about you, LionsDen, and perhaps the problem lies in the lack of precision in the term “overturn,” but it seems to me that if the United States Supreme Court makes void a lower court decision, or annuls the lower court’s decision, or sets aside the lower court’s decision, then that decision has been “overturned.” It is null (the exact meaning of “annulled”), it is void (the exact meaning of to “make void”), it is of no effect, it is as if that lower court decision had never been made, and the court must begin anew to reconsider its decision.

Let me agree with my online friend, Maddog. I should have written that VACATE does not mean REVERSE.

The US Supreme never REVERSED the first Adler decision. It merely set it aside for rehearing in light of the Santa Fe decision.

The second Adler decision is EXACTLY THE SAME. And the Supreme Court allowed it to stand.

The final word is this:

Student prayer and religious speech at official school graduations is constitutional.

All a school district needs to do to make sure is to craft the same policy as that of Duval County and apply it as Duval did.

That also means that censorship groups like the ACLU cannot argue that student graduation prayers are always unconstitutional.

The really good news:

The ACLU appealled Adler II and the US Supreme Court denied the appeal. That enhanced the fact that student prayers at graduations are not unconstitutional.

I am glad to address this for our forum.

D. Scarlatti · #**117** 06-14-2006, 03:09 AM

You've addressed next to nothing, and once again misrepresented the significance of the Supreme Court's denial of cert.

godfry n. glad · #**118** 06-14-2006, 03:11 AM

Another case of willful ignorance.

D. Scarlatti · #**119** 06-14-2006, 03:24 AM

That's because he's held to a higher standard.

livius drusus · #**120** 06-14-2006, 03:25 AM

LionsDen, I'm disappointed to see that you did not apologize to maddog for rudely and sarcastically implying that she was being dishonest when in fact you simply misunderstood her reference. I took you at your word when you said:

Quote:

Originally Posted by LionsDen earlier in the thread

In debating/disagreeing style, I make it a point to always treat people kindly and respectfully. I ignore insults, don't use profanity or obscenity at people, and walk away from threads that degenerate into insults. I often admit when I am wrong, and thank people for sticking to issues and working with others to find common areas of agreement.

The above standards are laudable, and not, I believe, in any way reflected by this comment of yours:

Quote:

Originally Posted by LionsDen more recently

I am sure you knew all this and just 'forgot' to tell everyone here on the forum. You didn't actually intend to mislead anyone. That was just an accident by you, right MadDog?

If you disagree that this comment does not live up to your standards of treating people "kindly and respectfully", of not insulting people in kind, of admitting when you are wrong, and working towards common areas of agreement, then I would like to hear how you reconcile the two statements.

godfry n. glad · #**121** 06-14-2006, 03:28 AM

Quote:

Originally Posted by D. Scarlatti

That's because he's held to a higher standard.

They have higher standards of stupidity?

LionsDen · #**122** 06-14-2006, 03:28 AM

Quote:

Originally Posted by D. Scarlatti

You've addressed next to nothing, and once again misrepresented the significance of the Supreme Court's denial of cert.

Feel free to address anything I've written.

Consider these choice words for starters:

Quote:

The US Supreme never REVERSED the first Adler decision. It merely set it aside for rehearing in light of the Santa Fe decision.

The second Adler decision is EXACTLY THE SAME. And the Supreme Court allowed it to stand.

The final word is this:

Student prayer and religious speech at official school graduations is constitutional.

All a school district needs to do to make sure is to craft the same policy as that of Duval County and apply it as Duval did.

That also means that censorship groups like the ACLU cannot argue that student graduation prayers are always unconstitutional.

The really good news:

The ACLU appealled Adler II and the US Supreme Court denied the appeal. That enhanced the fact that student prayers at graduations are not unconstitutional.

I am glad to address this for our forum.

Do you disagree that the US Supreme Court never reversed Adler?

Do you disagree that the Appellate Court revisited Adler in light of Santa Fe?

Do you disagree that the Appellate Court ruled against the plaintiffs again?

Do you disagree that the Appellate Court ruled that Duval County's policy passes constitutional muster?

Do you disagree that the Appellate Court let the policy stand as applied by Duval County?

Do you disagree that the Duval Country policy as applied by Duval County enabled students to offer prayers to God at a public school graduation?

Do you disagree that the ACLU appealed Adler II to the US Supreme Court?

Do you disagree that the US Supreme Court refused to hear the appeal by the ACLU?

Do you disagree that student prayers at graduation ceremonies are now constitutionally-protected free speech in Duval County public schools?

Do you disagree that student prayers at graduation ceremonies are now constitutionally-protected free speech in the entire Appellate Court District of which Duval Country is a part where the school policy is that of Duval County and is so applied?

I gladly present this as a service to anyone whose school district is considering ways to protect student free speech in general and student religious freedom of speech including prayers in particular.

D. Scarlatti · #**123** 06-14-2006, 03:37 AM

Quote:

Originally Posted by LionsDen

Feel free to address anything I've written.

I've addressed several things you've written. You've ignored it, and refused to answer my questions.

More importantly, maddog has addressed - extensively and in minute detail - many of the things you've written. And with all due respect to livius, the innuendo you directed at maddog had to do with her discussion of Gossage, not so much with a misunderstanding of what it is to vacate a case.

Now you've returned here and deliberately avoided answering to the charges you made against maddog pursuant to her discussion of the Kentucky case. You've had very little credibility from the point you composed the utterly untruthful title to this very thread, and at this stage of your little game you have considerably less.

That you claim to hold yourself to a "higher standard" is little more than a joke at this point.

godfry n. glad · #**124** 06-14-2006, 03:50 AM

Indeed, LionsDen unwillingness to respond in any substantive manner and arrogance tends to make me think their posts are mere spam.

Ari · #**125** 06-14-2006, 04:04 AM

Why am I getting the feeling that LionsDen has never seen these religious lawyers lie because (s)he closes his/her eyes and clicks wildly till it goes away.

Among the many things LionsDen hasn't commented on (which I would be interested in an answer) is why a Focus director (someone supposably held to a higher standard) has openly applauded Erica knowingly lying to her teachers and classmates.

Getting back to Erica Corder (If I understand this correctly). Based on current rulings (assuming they are wider covering than they are).

A school can choose whether or not to review the speech.

A religious message can be read at graduation if:
•The school does not review the speech.
•The students choose the speaker but not the speech.
•It is 2 minutes or shorter.

A religious message can not be read at graduation if:
•The school reviews the speech.
•The students choose the theme of the speech.

In Erica Corder's case the speech was reviewed by the school and agreed upon by students (although her religious message wasn't).