the significant Christian elements in the prayers that had been used. Moreover, the court lumped the graduation exercises together with other university functions as if the relevant facts and considerations were the same for all functions. Instead, each type of function deserves its own distinct analysis, because the context of a graduation ceremony, for instance, may be quite different from the context of a faculty meeting or a guest lecture.
The reasoning and the result in Tanford and Chaudhuri may be further subject to question in the wake of the U.S. Supreme Court's ruling in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). In considering the validity, under the establishment clause, of a school district policy providing for student-led invocations before high school football games, the Court placed little reliance on factors emphasized by the Tanford and Chaudhuri courts, and instead focused on factors to which these courts gave little attention—for example, the “perceived” endorsement of religion implicit in the policy itself, the “history” of prayer practices in the district and the intention to “preserve” them, and the possible “sham secular purposes” underlying the student-led invocation policy. In effect, the arguments that worked in Tanford and Chaudhuri did not work in Santa Fe, and factors touched upon only lightly in Tanford and Chaudhuri were considered in depth in Santa Fe, thus leading to the Court's invalidation of the Santa Fe School District's invocation policy. An open question involves whether invocations at a college or university graduation are more analogous, for an establishment clause analysis, to high school graduations or to prayers before the start of legislative meetings. (For a recent U.S. Supreme Court case upholding the permissibility of a prayer at a municipal meeting, see Town of Greece v. New York, 134 S. Ct. 1811 (2014).)
A 2005 case provides an instructive example of institutional activities other than group prayer that may raise establishment clause issues. The case, O'Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005), also illustrates the type of establishment claim premised on institutional disapproval of or hostility to religion rather than institutional endorsement of or support for religion.
In O'Connor, a professor and a student claimed that the university (a public university) had installed a statue on campus that negatively and offensively portrayed Roman Catholicism, thus violating their establishment clause rights. According to the appellate court, the statue, “entitled ‘Holier Than Thou,’ depicts a Roman Catholic Bishop with a contorted facial expression and a miter that some have interpreted as a stylized representation of a phallus.” The statue had been selected, along with four others, in an annual competition, “for displaying in a temporary outdoor sculpture exhibition [that] supplements the university's collection of twenty-five [permanent] outdoor statues.” Selection of the five temporary statues was made by a three-person jury of art professionals chosen by the university's Campus Beautification Committee, and both the committee and the university president had approved the selections. Once the statue was installed along a “high traffic sidewalk,” the university began receiving numerous complaints from within and outside the university. The university considered the complaints but declined to remove the statue.
In ruling on the establishment clause claim, the appellate court applied the Lemon test, as modified by the “endorsement or disapproval” test (see 416 F.3d at 1223–24), placing more emphasis on the latter test (often called just the “endorsement test”) than did the courts in the cases discussed above. The endorsement test focuses on whether the governmental activity at issue “has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred,” on the one hand, or disapproved or disparaged on the other. Under the first prong of the test, “purpose,” the question is “whether ‘the government's actual purpose is to endorse or disapprove of religion.’” Under the second prong, “effect,” the question is “whether a reasonable observer aware of the history and context of the [activity at issue] would find the [activity] had the effect of favoring or disfavoring a certain religion [or religious belief].” (See 415 F.3d at 1227–31, quoting Bauchman ex rel. Bauchman v. W. High School, 132 F.3d at 551–52.) Applying this test, the court focused on whether, in the context of all the pertinent facts, the university's selection or placement of the statue, or its refusal to remove it after receiving complaints had “either (1) the purpose or (2) the effect of conveying a message” that the university disapproved of or disparaged Roman Catholicism or a particular Catholic belief. Regarding “purpose,” the court determined that the plaintiffs had not produced any evidence that the university's actions were motivated by a disapproval of Catholicism and that the university had other aesthetic and educational “reasons” for its decisions. Regarding “effect,” the court determined that, even if the effect of the statue was to convey “an anti-Catholic message” (a point on which the court did not rule), a “reasonable observer viewing [the statue] in context would understand that the university had not approved or agreed with that message.”
It was important to the court's reasoning that the “Holier Than Thou” statue was displayed on a university campus rather than, say, in a city park or on the grounds of a county office building. The court emphasized that a campus is “peculiarly the marketplace of ideas” (citing Healy v. James, 408 U.S. at 180), a place where government “acts against a background and tradition” of academic freedom (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. at 835)). Moreover, the placement and retention of the statue, in context, had implicated the university's educational mission and its curriculum. Even though the statue was not created as part of a course, it was nevertheless “part of [the university's] educational curriculum”; the president and the vice president of academic affairs had both “testified that they strove to extend the educational environment…beyond the classroom to encompass various stimuli including art, theatre, music, debate, athletics, and other activities.”
Apparently, in such academic, higher education contexts, courts may accord public colleges and universities more leeway than other governmental entities to establish religiously neutral educational reasons for engaging in activities that involve religion in some way. Similarly, in this context, courts may find it less likely that a reasonable observer “would associate” a particular, allegedly religious message with the college or university itself (416 F.3d at 1229–30). More broadly, these attributes of higher education serve to support the assertion, made by the U.S. Supreme Court and repeated by lower courts, “that religious themes ‘may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like’” (416 F.3d at 1230, quoting Stone v. Graham, 449 U.S. 39, 42 (1980)).
The U.S. Supreme Court case, Pleasant Grove City v. Summum, 555 U.S. 460 (2009), introduces an additional dimension to cases like O'Connor v. Washburn University. In particular, Pleasant Grove illustrates how there could be not only an establishment challenge but also a free speech clause challenge to a governmental entity's placement or rejection of placement of religious monuments or statues on public property. Faced with such a challenge, according to the Court, the governmental entity may often prevail by characterizing the placement of the monument or statue as “governmental speech” rather than “private speech.” Success with this argument, however, would not insulate the governmental entity from an establishment clause challenge, which requires a separate analysis as illustrated by O'Connor.
Section 1.7. The Relationship Between Law and Policy
There is an overarching distinction between law and policy, and thus between legal issues and policy issues, that informs the work of administrators and policy makers in higher education, as well as the work of lawyers.12 In brief, legal issues are stated and analyzed using the norms and principles of the legal system, resulting in conclusions and advice on what the law requires or permits in a given circumstance. Policy issues, in comparison, are stated and analyzed using norms
