Griffith v. Butte School District No. 1

November 19 2010

DA 10-0109

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 246

RENEE GRIFFITH,

Plaintiff and Appellant,

v.

BUTTE SCHOOL DISTRICT NO. 1,
CHARLES UGGETTI and JOHN METZ,

Defendants and Appellees.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 09-0539
Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William J. O’Connor, II (argued), O’Connor & O’Connor, PC,
Billings, Montana

For Appellees:

Debra A. Silk, Tony C. Koenig (argued), Aaron Navin Bouschor,
Montana School Boards Association, Helena, Montana

Argued and Submitted: September 14, 2010

Decided: November 19, 2010
Filed:

__________________________________________
Clerk

2
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Renee Griffith (Griffith) appeals from an order entered by the Thirteenth Judicial

District, Yellowstone County, granting summary judgment in favor of Butte School

District No. 1 (School District), Charles Uggetti (Uggetti), and John Metz (Metz). She

appeals the District Court’s conclusion that her claims were barred by the Montana

Human Rights Act and argues the court erred in finding the School District’s action did

not violate her rights to free speech and to freedom of religion under the United States

and Montana Constitutions. We reverse and remand.

ISSUES

¶2 We consider the following issues:

¶3 1. Did the District Court err in ruling the exclusivity provision of the Montana

Human Rights Act barred Griffith’s claims for violation of her state and federal

constitutional rights to free speech and freedom of religion?

¶4 2. Did the District Court err in concluding that the School District’s refusal to

permit Griffith to state her personal religious views during her valedictory speech did not

violate Griffith’s state and federal constitutional rights to free speech and freedom of

religion?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 The parties do not dispute the material facts. During the 2007–2008 academic

year, Griffith was a senior at Butte High School (BHS), which is a school in the School

District. Metz was the principal of BHS and Uggetti was the superintendent of the

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School District. Griffith, along with several classmates, achieved the distinction of being

named valedictorians of the class of 2008, and was invited to speak at the May 29, 2008

graduation ceremony. Griffith was one of the valedictorians who expressed a desire to

deliver a speech.

¶6 Neither the School District nor BHS had written guidelines for student speakers

addressing the content of valedictory speeches. The students were told their remarks had

to be “appropriate, in good taste and grammar, and should be relevant to the closing of

[their] high school years.” The style and topic of the speech was left to each speaker.

Since there were several valedictorians, Griffith was asked to give her remarks jointly

with another student, Ethan Keeler. Together, Griffith and Keeler decided to give a

speech in an alternating fashion on the topic of what they learned in high school.

¶7 Among the remarks Griffith wrote and intended to deliver at the graduation

ceremony, she included the following passage:

I learned to persevere these past four years, even through failure or
discouragement, when I had to stand for my convictions. I can say that my
regrets are few and far between. I didn’t let fear keep me from sharing
Christ and His joy with those around me. I learned to impart hope, to
encourage people to treat each day as a gift. I learned not to be known for
my grades or for what I did during school, but for being committed to my
faith and morals and being someone who lived with a purpose from God
with a passionate love for Him.

Griffith felt she could not accurately convey her high school experience without

mentioning these motivations for her accomplishments, actions, and life purpose.

¶8 In the days prior to the graduation ceremony, the student speakers met with

Stephen Riordan, a speech coach asked by the school to assist the students with their

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speeches. During their second meeting, Riordan relayed a message from Superintendent

Uggetti to Griffith—she must omit the references to “God” and “Christ” in her speech

because religious references were not permitted in graduation speeches.

¶9 Two days before the graduation ceremony, Griffith and her father met with

Uggetti, who gave them a copy of the School District’s policies. Uggetti reiterated that

religious references would not be allowed in students’ graduation speeches. The two

policies that relate to graduation ceremonies and speeches, and that are issue in this case,

are School District Policies Nos. 2333 and 2332.

¶10 The relevant text of School District Policy No. 2333 is found under the heading

Organization and Content for Commencement Speeches and states:

The school administration shall not censor any presentation or require any
content, but may advise the participants about appropriate language for the
audience and occasion. Students selected to participate may choose to
deliver an address, poem, reading, song, musical presentation, prayer, or
any other pronouncement of their choosing.

This policy also requires the printed graduation ceremony program to include the

following paragraphs (hereinafter the “Disclaimer”):

Any presentation by participants of graduation exercises is the private
expression of the individual participants and does not necessarily reflect
any official position of the District, its Board, administration, or employees,
or indicate the views of any other graduates.

The Board recognizes that at graduation time and throughout the course of
the educational process, there will be instances where religious values,
religious practices, and religious persons will have some interaction with
the public schools and students. The Board, however, does not endorse
religion, but recognizes the rights of individuals to have the freedom to
express their individual political, social or religious views, for this is the
essence of education.

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Under the heading of Graduation Ceremonies, the pertinent section of School District

Policy No. 2332 says:

Graduation is an important event for students and their families. In order to
assure the appropriateness and dignity of the occasion, the District sponsors
and pays for graduation ceremonies and retains ultimate control over their
structure and content.

. . .

The District may not prefer the beliefs of some students over the beliefs of
others, coerce dissenters or nonbelievers, or communicate any endorsement
of religion.

¶11 The School District contends that its practice is to follow Policy No. 2332 and not

No. 2333, even though both policies are current and remain in effect. Thus, while the

School District prints the Disclaimer set out in Policy No. 2333 in the graduation

program, it also requires students to submit their remarks for review prior to the

graduation ceremony. Contrary to the written non-censorship language in Policy No.

2332, it is the practice of the School District to prohibit religious references of any kind

in student speeches.

¶12 Consequently, one day before the graduation ceremony, Uggetti summoned

Griffith to his office and proposed the following changes to her remarks:

I learned to persevere these past four years, even through failure or
discouragement, when I had to stand for my convictions. I can say that my
regrets are few and far between. I didn’t let fear keep me from sharing my
faith with those around me. I learned to impart hope, to encourage people
to treat each day as a gift. I learned not to be known for my grades or for
what I did during school, but for being committed to my faith and morals
and being someone who lived with a purpose derived from my faith and
based on a love of mankind. (Emphasis added.)

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¶13 Griffith informed Uggetti she would not change her original remarks because she

believed she could not speak of what she had learned in high school without

acknowledging Christ and God. Uggetti told Griffith that, while he was ultimately in

charge of the School District, he would defer to the judgment of Principal Metz

concerning whether or not Griffith would be allowed to speak. He repeated, however,

that it was unlikely she would be allowed to speak unless she removed the religious

references.

¶14 At the graduation practice, Metz called Griffith and Keeler aside and told Griffith

she had to either remove the religious references from her remarks or not speak at all.

Griffith responded that she would not change her speech.

¶15 In accordance with Policy No. 2333, the Disclaimer was printed in the May 29,

2008 BHS graduation program. During the graduation ceremony, Keeler gave his

valedictory speech with another partner. Griffith was not permitted to speak because she

would not remove the religious references from her speech.

The Human Rights Bureau Administrative Proceedings

¶16 On July 23, 2008, Griffith filed a timely complaint with the Montana Human

Rights Bureau (HRB). She alleged Uggetti, Metz, and the School District had

discriminated against her in her education on the basis of creed or religion in violation of

the Montana Human Rights Act (MHRA), specifically § 49-2-307, MCA. Pursuant to

§ 49-2-504(1), MCA, an HRB investigator conducted an informal investigation of

Griffith’s allegations of discrimination in education based on her religion. The

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investigator took statements from all of the parties, reviewed pertinent documents, and

interviewed witnesses.

¶17 The investigator filed a Final Investigative Report with the HRB recommending a

finding of “no cause to believe unlawful discrimination occurred as set forth in Griffith’s

complaint.” On January 20, 2009, Griffith received a two-page letter from the HRB

entitled “Notice of Dismissal and Notice of Right to File Civil Action in District Court.”

The District Court Proceedings

¶18 Upon receipt of the notice of dismissal from the HRB and pursuant to § 49-2-511,

MCA, Griffith filed a timely complaint in the Thirteenth Judicial District, Yellowstone

County. Griffith claimed the School District, Uggetti, and Metz violated her state and

federal constitutional rights to free speech and freedom of religion. Her complaint

alleged, in six counts, that the defendants violated: (I) the MHRA, Title 49, chapter 2,

MCA; (II) the Governmental Code of Fair Practices, Title 49, chapter 3, MCA;1 (III)

Article II, Section 5 of the Montana Constitution; (IV) Article II, Section 7 of the

Montana Constitution; (V) the First Amendment to the United States Constitution; and

(VI) the Fourteenth Amendment to the United States Constitution. Griffith’s complaint

prayed for nominal and compensatory damages, as well as attorney fees.

¶19 On cross-motions for summary judgment, the District Court found in favor of the

School District. The court determined the exclusivity provision of the MHRA barred

Counts III through VI because, while Griffith pled these claims as constitutional tort

1
Griffith did not appeal the District Court’s ruling on this issue, and we therefore decline to
address it in this Opinion.

8
actions, the gravamen of the claims was discrimination. As to Count I, violation of the

MHRA, the District Court found the School District did not violate the First Amendment

to the United States Constitution or § 49-2-307(1), MCA, when it prohibited Griffith

from delivering her unedited remarks. The court concluded that the School District’s

practice of excluding expression of personal religious views in student speeches was a

reasonable basis for its action against Griffith. Furthermore, since the practice was

applied evenly, and with the intent to preclude any implied endorsement of religious

views by the School District, the court held the School District’s decision prohibiting

Griffith from speaking did not violate either the Establishment Clause of the First

Amendment to the United States Constitution or § 49-2-307(1), MCA.

¶20 Griffith appeals the District Court’s order granting summary judgment in favor of

the School District, Uggetti, and Metz.

STANDARD OF REVIEW

¶21 We review orders of summary judgment de novo, applying the same criteria

employed by the district court pursuant to M. R. Civ. P. 56. PPL Montana, LLC v. State,

2010 MT 64, ¶ 84, 355 Mont. 402, 229 P.3d 421. Summary judgment is appropriate

when “the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” M. R. Civ. P.

56(c). When the material facts are undisputed, we review a district court’s conclusions of

law for correctness. Edwards v. Cascade Co. Sheriff’s Dept., 2009 MT 451, ¶ 38, 354

Mont. 307, 223 P.3d 893.

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 DISCUSSION

¶22 The School District first argues Griffith’s claims are moot because Griffith has

graduated from BHS and has not sought monetary damages. Griffith asserts that she

seeks to vindicate her constitutional rights and her original claim for nominal damages in

her complaint prevents the action from becoming moot.

¶23 “Mootness is a threshold issue which we must resolve before addressing the

substantive merits of a dispute.” In the Matter of the Mental Health of D.V., 2007 MT

351, ¶ 30, 340 Mont. 319, 174 P.3d 503 (quoting Havre Daily News, LLC v. City of

Havre, 2006 MT 215, ¶ 31, 333 Mont. 331, 142 P.3d 864). A matter is moot when, due

to the occurrence of an event or passage of time, the issue ceases to present a justiciable

controversy or the court cannot grant effective relief. Id.

¶24 Griffith’s prayer in her complaint for nominal damages for violation of her

constitutional rights prevents this action from becoming moot. Jacobs v. Clark Co. Sch.

Dist., 526 F.3d 419, 425-26 (9th Cir. 2008) (citing Bernhardt v. Co. of Los Angeles, 272

F.3d 862, 872 (9th Cir. 2002)). Plaintiffs who prove a violation of their constitutional

rights must be awarded nominal damages as a matter of law. Cummings v. Connell, 402

F.3d 936, 944 (9th Cir. 2005) (citing Schneider v. Co. of San Diego, 285 F.3d 784,

794-95 (9th Cir. 2002)); see also Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042,

1053-54 (1978). As Griffith’s complaint clearly prays for nominal damages; her claim is

10
not moot. As a result, we address the merits of the substantive issues presented on

appeal.2

¶25 Issue One. Did the District Court err in ruling the exclusivity provision of the
Montana Human Rights Act barred Griffith’s claims for violation of her state
and federal constitutional rights to free speech and freedom of religion?

¶26 “We determine the substantive rights between the parties according to the law in

effect at the date of injury.” Boettcher v. Mont. Guaranty Fund, 2007 MT 69, ¶ 14, 336

Mont. 393, 154 P.3d 629 (quoting Anderson v. Werner Enterprises, Inc., 1998 MT 333,

¶ 28, 292 Mont. 284, 972 P.2d 806). Griffith’s injury occurred in May 2008. The law in

effect at the time of Griffith’s injury was the 2007 version of the MHRA. In reaching its

decision, the District Court purported to apply the 2009 version of the MHRA, which is

in all pertinent respects the same as the 2007 version. However, the court then went on to

erroneously analyze this case under the rationale of Saucier v. McDonald’s Restaurants

of Montana, Inc., 2008 MT 63, 342 Mont. 29, 179 P.3d 481. Our reasoning in Saucier

was wholly premised on the 2001 version of the MHRA that was in effect at the time of

Saucier’s claimed injury. As we noted in Footnote 1 of Saucier, “[b]ecause many

portions of the MHRA have been revised since its enactment . . . all statutory references

in this Opinion are to the 2001 version of the MHRA, which was in effect during the time

period relevant to this case.” Saucier, ¶ 37. Given the significant revisions to the MHRA

in 2007, which change and simplify the exclusivity provision of the MHRA that was at

issue in Saucier, much of the analysis in Saucier has no application here.

2
The parties also addressed the exception to the mootness doctrine that exists when the issue is
capable of repetition yet may evade review. Because we find the prayer for damages precludes a
finding of mootness, it is unnecessary to reach this question.

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¶27 This is the first opportunity this Court has had to interpret the MHRA’s procedural

and exclusivity provisions, as amended in 2007. Since neither the parties nor the District

Court acknowledged or addressed the Montana Legislature’s 2007 amendments, we

review the salient MHRA provisions and note the significant changes made by the

Legislature. We then apply the correct law to the facts of this case.

A. The 2007 amendments to the MHRA

¶28 In 2007, the Montana Legislature enacted House Bill 76 (HB 76) to amend the

MHRA and specifically address the confusion courts and attorneys expressed regarding

when and how a complaint alleging discrimination could be brought to district courts in

light of the exclusive remedy provision of the MHRA. See Mont. H. Bus. & Lab.

Comm., Minutes on the Hearing on HB 76, 60th Leg., Reg. Sess. 3 (Jan. 12, 2007).

During both the House and Senate hearings, the sponsor of HB 76, Rep. Walter McNutt,

clearly expressed that the intent of the 2007 amendments was to clarify the procedures.

Id. Germane to this case are the amendments clarifying how a case that is initially

brought to the HRB can, ultimately, proceed to the district court for a trial on the merits.

Sections 49-2-504, -511 and -512, MCA (2007), contain the significant procedures.

¶29 Section 49-2-504(7)(b), MCA. The 2007 Legislature added new subsection (7)(b)

to the then-existing § 49-2-504, MCA:

(7)(b) If the department finds that there is no reasonable cause to
believe that unlawful discrimination occurred, it shall issue a notice of
dismissal and dismiss the case from the department’s administrative
process. After receipt of a notice of dismissal, a charging party may:
(i) continue the administrative process by filing objections with the
commission as provide in 49-2-511; or

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 (ii) discontinue the administrative process and commence
proceedings in district court as provided in 49-2-511. (Emphasis added.)

¶30 Section 49-2-509, MCA. This section was repealed in 2007. Prior to 2007,

subsection (7) contained the exclusivity provision that we interpreted in Saucier,

¶¶ 43-44, Vettel-Becker v. Deaconess Med. Ctr. of Billings, Inc., 2008 MT 51, ¶¶ 31–34,

341 Mont. 435, 177 P.3d 1034, and Edwards, ¶¶ 69–75.

¶31 Section 49-2-511, MCA. This section was added as a new section in 2007.

Relevant to this case is subsection (3)(a), which states:

Dismissal after informal proceedings – filing of objections – procedures
– action in district court.

. . .

(3)(a) Within 90 days after the department has issued a notice of
dismissal pursuant to 49-2-501(5) or 49-2-504(7)(b) or within 90 days after
the commission has issued an order affirming the department’s notice of
dismissal pursuant to subsection (2)(b) of this section, the charging party
may commence a civil action for appropriate relief on the merits of the
case in the district court in the district in which the alleged violation
occurred. If the charging party fails to commence the civil action in the
district court within 90 days after the final agency decision has been issued,
the claim is barred. The court may provide the same relief as described
in 49-2-506. In addition, the court may in its discretion allow the
prevailing party reasonable attorney fees and costs. (Emphasis added.)

¶32 Section 49-2-512, MCA. This section became a stand-alone section in 2007.

While subsection (1) contains the same exclusivity provision previously codified as

§ 49-2-509(7), MCA, subsections (2) and (3) were added:

Filing in district court – compliance with administrative procedures
required. (1) The provisions of this chapter establish the exclusive remedy
for acts constituting an alleged violation of chapter 3 or this chapter,
including acts that may otherwise also constitute a violation of the
discrimination provisions of Article II, section 4, of the Montana

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 constitution or 49-1-102. A claim or request based upon the acts may not
be entertained by a district court other than by the procedures specified in
this chapter.
(2) In addition to dismissal under 49-2-501(5) or 49-2-504(7)(b), the
department shall dismiss a complaint if:
(a) the charging party fails to keep the department advised of
changes of address and the department finds that the failure has impeded
the administrative proceedings; or
(b) a period of 12 months has elapsed from the filing of a complaint
and neither the department nor the commission has held a hearing pursuant
to 49-2-505 or an informal hearing pursuant to 49-2-511. However, the
department or the commission may refuse to dismiss a complaint under this
subsection (2)(b) if:
(i) more than 30 days have elapsed since service of notice of hearing
under 49-2-505;
(ii) the parties have stipulated to a reasonable extension of the
timeframes; or
(iii) through litigation a party has unsuccessfully sought to prevent
the department or the commission from conducting administrative
proceedings on the complaint.
(3) Within 90 days after the department has issued a notice of
dismissal pursuant to subsection (2), the charging party may commence a
civil action for appropriate relief on the merits of the case in the district
court in the district in which the alleged violation occurred. If the charging
party fails to commence the civil action in the district court within 90 days
after the dismissal has been issued, the claim is barred. The court may
provide the same relief as described in 49-2-506. In addition, the court
may in its discretion allow the prevailing party reasonable attorney fees and
costs. (Emphasis added.)

B. Statutory interpretation of the 2007 MHRA.

¶33 The rules of statutory construction are well-settled. Section 1-2-101, MCA,

commands that:

In the construction of a statute, the office of the judge is simply to ascertain
and declare what is in terms or in substance contained therein, not insert
what has been omitted or to omit what has been inserted. Where there are
several provisions or particulars, such a construction is, if possible, to be
adopted as will give effect to all.

14
Additionally, “the intention of the legislature is to be pursued if possible,” § 1-2-102,

MCA, and no further interpretation is required when the plain language of the statute is

clear and unambiguous. Miller v. Eighteenth Jud. Dist. Ct., 2007 MT 149, ¶ 38, 337

Mont. 488, 162 P.3d 121 (citations omitted).

¶34 The plain language of §§ 49-5-504, -511, and -512, MCA (2007), is clear and

unambiguous.3 Section 49-2-504(7)(b)(ii), MCA, clearly states that once the HRB

dismisses a complaint, the charging party may file a complaint in district court, so long as

the party complies with § 49-2-511, MCA, and files the complaint within ninety days of

the HRB’s notice of dismissal. Additionally, § 49-2-511(3)(a), MCA, clarifies that, at

this point, the district court must hold a trial on the merits of the case and may provide

the relief outlined in § 49-2-506, MCA, in addition to awarding attorney fees and costs.

This plain reading of the statues is harmonious with the 2007 Legislature’s intent to

clarify the procedural pathway a discrimination case takes through the HRB process.

¶35 Given the 2007 substantive revisions to the MHRA, the gravamen analysis upon

which we relied commencing with Harrison v. Chance, 244 Mont. 215, 797 P.2d 200

(1990), and through our decisions in Saucier, Vettel-Becker, and Edwards is, mercifully,

no longer necessary when analyzing the propriety of filing suit in district court following

notice of dismissal by the HRB. We caution their holdings may still be viable, however,

in those situations where the plaintiff files a claim “sounding in discrimination” in the

district court without first filing a claim before the HRB and receiving a notice of

3
Unless indicated otherwise, all subsequent statutory references in this Opinion are to the 2007
version of the MHRA, which was in effect during the time period relevant to this case. Of note,
there was no change in the MHRA between the 2007 and 2009 versions.

15
dismissal. See Vettel-Becker, ¶ 37; Edwards, ¶ 75. If a claim “sounding in

discrimination” is brought to the district court absent an accompanying notice of

dismissal from the HRB, it could be barred by § 49-2-512(1), MCA (2007).

C. Griffith’s claims are not barred by the MHRA exclusivity provision

¶36 The statutory language of §§ 49-2-504, -511 and -512, MCA, is unambiguous.

The statutes permit a party to take a case to district court for a trial on the merits once the

action is dismissed from the HRB. There is no provision that allows a district court to

essentially remand a case back to the HRB if it disagrees with the HRB and finds the

complaint sounds in discrimination. In this situation, §§ 49-2-511(3)(a) and -512(3),

MCA, specifically state the district court may provide the same relief to the prevailing

party as would have been received in the administrative process.

¶37 Accordingly, Griffith was entitled to a trial in district court addressing the merits

of all of her claims, including her discrimination allegations. Griffith complied with

§ 49-2-501, MCA, and filed a timely complaint with the HRB. Upon concluding its

investigation, the HRB issued a notice of dismissal and right to sue in district court, in

compliance with the plain language of § 49-2-504(7)(b), MCA.

¶38 In the notice of dismissal, the HRB outlined Griffith’s options for appealing its

decision, including her right to a trial on the merits in district court. The notice

accurately reflected and conveyed the plain language of the MHRA. It stated that,

pursuant to § 49-2-504(7), MCA, “the HRB shall dismiss a complaint and the charging

party may file a civil action in the district court” if the HRB finds the complaint was

unsupported by a preponderance of the evidence. The notice went on to state, in all

16
capital letters, that Griffith had ninety days from the date of the notice of dismissal to file

a complaint in district court. The notice ended by reiterating: (1) the case was dismissed

from the administrative procedure; (2) the charging party may file an action in district

court; and (3) the district court may award attorney fees to the prevailing party.

¶39 We conclude that, on its face, the notice of dismissal comports with the plain

meaning of the current MHRA. We defer to the HRB’s interpretation because it is

reasonable and in accordance with the spirit and the legislative intent of the amended

statutes. Clark Fork Coalition v. Mont. Dept. of Envtl. Quality, 2008 MT 407, ¶ 20, 347

Mont. 197, 197 P.3d 482. Therefore, we reverse the District Court and hold that

Griffith’s claims were not barred by the exclusivity provision of the MHRA.

¶40 Issue Two. Did the District Court err in concluding that the School District’s
refusal to permit Griffith to state her personal religious views during her
valedictory speech did not violate Griffith’s state and federal constitutional
rights to free speech and freedom of religion?

¶41 Before turning to the substantive merits of Griffith’s appeal, we address two

preliminary issues. First, for the reasons set forth below, Griffith’s claims were properly

pled as constitutional tort actions. We agree with the HRB that her claims did not allege

discrimination within the meaning of the MHRA.

¶42 Second, the parties present several undeveloped arguments that we decline to

consider. Parties must present a reasoned argument to advance their positions, supported

by citations to appropriate authority. M. R. App. P. 12(f). When a party fails to do so,

our caselaw is well-settled. We will not consider unsupported issues or arguments. In re

Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, 53 P.3d 1266. Moreover,

17
“[i]t is not this Court’s job to conduct legal research on [a party’s] behalf, to guess as to

[a party’s] precise position, or to develop legal analysis that may lend support to that

position.” Johansen v. Dept. of Nat. Resources & Conservation, 1998 MT 51, ¶ 24, 288

Mont. 39, 955 P.2d 653 (citations omitted); see also State v. Gomez, 2007 MT 111, ¶ 33,

337 Mont. 219, 158 P.3d 442.

¶43 Griffith presents a two–paragraph, undeveloped argument that the School District

violated her right to free speech under Article II, Section 7 of the Montana Constitution.

The School District does not address Article II, Section 7 of the Montana Constitution at

all, except to assert it did not violate Griffith’s right to free speech under the provision.

We will not formulate arguments for the parties; we therefore decline to consider this

issue further.

¶44 Next, Griffith presents an undeveloped argument that the School District violated

her constitutional right to equal protection of the law under the Fourteenth Amendment of

the United States Constitution because the School District prohibited her from delivering

her unedited valedictory speech. She does not identify what group or classification is at

issue, or whether she claims to be a “class of one,” which is the preliminary step of an

equal protection analysis. The School District merely reiterates portions of its First

Amendment arguments without squarely addressing the equal protection claim. Neither

party presents a fully-developed legal analysis as to the equal protection claim.

Therefore, we also decline to consider this issue further.

18
¶45 With those preliminary matters addressed, for the reasons discussed herein, we

hold: (1) the School District violated Griffith’s right to freedom of speech under the First

Amendment of the United States Constitution, entitling her to relief under 42 U.S.C.

§ 1983 (2006); and (2) the School District did not violate Griffith’s right to freedom of

religion under either Article II, Section 5 of the Montana Constitution or the First

Amendment of the United States Constitution.

A. The School District violated Griffith’s constitutional right to freedom of speech
when it imposed a non-neutral, viewpoint-based limitation on the content of her
valedictory speech

¶46 “It is axiomatic that the government may not regulate speech based on its

substantive content or the message it conveys.” Denke v. Shoemaker, 2008 MT 418,

¶ 47, 347 Mont. 322, 198 P.3d 284 (quoting Rosenberger v. Rector & Visitors of the

Univ. of Virginia, 515 U.S. 819, 828, 115 S. Ct. 2510, 2516 (1995)). Viewpoint

discrimination is “an egregious form of content discrimination,” and “the government

must abstain from regulating speech when the specific motivating ideology or the opinion

or perspective of the speaker is the rationale for the restriction.” Id. (quoting

Rosenberger, 515 U.S. at 829, 115 S. Ct. at 2516). These basic principles of

constitutional law forbid the government from practicing viewpoint discrimination in any

forum—public, limited public, or non-public. Rosenberger, 515 U.S. at 829-30, 115

S. Ct. at 2516-17.

¶47 Students’ free speech rights in a school setting have not historically turned on the

type of forum created by a graduation ceremony, or the degree of regulatory control

19
school officials have in each of those various forums. As discussed more fully below, the

extent of a student’s right to free speech is determined on a case-by-case basis, in light of

the special circumstances of a school environment. Infra ¶ 49. Because questions

regarding forum (public, limited public, or non-public) have not formed part of the

analysis in free speech cases arising in the school environment, the parties’ arguments

asserting general First Amendment forum concerns are inapposite.

¶48 The United States Supreme Court’s present approach to a student’s right to free

speech was first articulated in Tinker v. Des Moines Indep. Community Sch. Dist., 393

U.S. 503, 89 S. Ct. 733 (1969). Since then, however, the United States Supreme Court

has often “set the [Tinker] standard aside on an ad hoc basis.” Morse v. Frederick, 551

U.S. 393, 417-18, 127 S. Ct. 2618, 2634 (2007) (Thomas, J. concurring). Therefore, we

must extrapolate the pertinent rules from the relevant federal cases.

¶49 Students “do not shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate,” but their rights are not commensurate with the rights

of adults and “must be applied in light of the special circumstances of the school

environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S. Ct. 562,

567 (1988) (quoting Tinker, 393 U.S. at 506, 89 S. Ct. at 736). School officials may not

impose viewpoint-based limitations on student speech in the school setting unless (1)

school officials reasonably conclude the speech will “materially and substantially disrupt

the work and discipline of the school,” Tinker, 393 U.S. at 513, 89 S. Ct at 740; (2) the

student’s expression in a school-sponsored activity may reasonably be “perceive[d] to

20
bear the imprimatur of the school,” Hazelwood, 484 U.S. at 271, 108 S. Ct. at 570; or

(3) the expression can be “reasonably viewed as promoting illegal drug use.” Morse, 551

U.S. at 409, 127 S. Ct. at 2629.

¶50 Applying this analytical framework to Griffith’s case, we conclude the School

District violated Griffith’s constitutional right to free speech because this matter does not

fall within any of the three recognized situations in which it is permissible for school

officials to impose a viewpoint-based limitation on student speech. First, the Morse

exception is clearly inapplicable because Griffith’s religious references in her valedictory

speech are wholly unrelated to illegal drug use. Second, it would be unreasonable to

conclude that Griffith’s brief mention of her personal religious views would materially

and substantially disrupt the graduation ceremony, and indeed the School District never

argues as such. Finally, we address the only exception argued by the parties—whether

Griffith’s passing references to God and Christ could “be perceived to bear the

imprimatur of the school.”

¶51 We find it unreasonable for the School District to conclude that Griffith’s cursory

references to her personal religious beliefs could be viewed by those in attendance at the

BHS graduation ceremony as a religious endorsement by the School District. To that

end, we find both the District Court’s and the School District’s reliance on Cole v.

Oroville Union High School District, 228 F.3d 1092 (9th Cir. 2000) misplaced. The

District Court and the School District cite Cole for the proposition that because the

School District retained control over the graduation ceremony, it was permissible for

21
Uggetti and Metz to censor Griffith’s speech to prevent, presumably, the School District

running afoul of the Establishment Clause. We disagree.

¶52 As the School District correctly recognizes in its brief, Cole is factually distinct

from this case. Cole, a senior at Oroville High School, attempted to deliver a sectarian,

proselytizing invocation, and Niemeyer, another senior, attempted to deliver a valedictory

speech that could easily be characterized as a sermon. Cole, 228 F.3d at 1097.

Niemeyer’s speech “advised the audience that ‘we are all God’s children, through Jesus

Christ [sic] death, when we accept his free love and saving grace in our lives,’ ”

requested the audience accept that God created man, and called upon the audience to

“yield to God our lives.” Id. The Establishment Clause of the First Amendment to the

United States Constitution “guarantees that government may not coerce anyone to

support or participate in religion or its exercise, or otherwise act in a way which

‘establishes a [state] religion or religious faith, or tends to do so.’ ” Lee v. Weisman, 505

U.S. 577, 587, 112 S. Ct. 2649, 2655 (1992) (citations omitted); see Cole, 228 F.3d at

1104.

¶53 The Ninth Circuit Court of Appeals concluded that the school district’s refusal to

permit Cole and Niemeyer to give their respective speeches was reasonable because both

the invocation and the valedictory speech were sectarian and proselytizing, which is a

type of speech that is, “by definition, designed to reflect, and even convert others, to a

particular religious viewpoint.” Cole, 228 F.3d at 1103 (quoting Doe v. Santa Fe Indep.

Sch. Dist., 168 F.3d 806, 817-18 (5th Cir. 1999)). The court further stated that, since

22
Niemeyer was undeniably calling on the audience to join him in his beliefs, a reasonable

dissenter or nonbeliever could believe that the school district was compelling implicit

participation in the proselytizing, which amounts to unconstitutional governmental

sponsorship of religion and a clear Establishment Clause violation. Id. at 1104 (“The

critical inquiry under Santa Fe and Lee to determine if religious activity at a major public

school event constitutes impermissible coercion to participate is whether ‘a reasonable

dissenter . . . could believe that the group exercise signified her own participation or

approval of it.’ ” (citation omitted)).

¶54 If Niemeyer’s remarks represent one end of the spectrum, Griffith’s remarks fall

on the other end, as the School District once again recognizes in its brief. In a two–page

speech, given jointly with another student and premised on a theme of what they learned

in high school, Griffith references God or Christ three times. Moreover, each of those

references is prefaced by “I learned,” or “my faith,” and each is unmistakably directed to

her personal life and beliefs. Not once did Griffith use the term “we” or “you”; her

passing references to her personal beliefs cannot be construed as proselytizing; and her

remarks were not part of a group exercise and did not elicit audience participation.

¶55 Furthermore, contrary to Cole, no objectively reasonable observer could perceive

that Griffith’s religious references bore the imprimatur of the School District. In fact, the

School District explicitly dissociated itself from Griffith’s speech by printing the

unambiguous Disclaimer in each graduation program pursuant to Policy No. 2333 stating

“any presentation by participants . . . is the private expression of the individual

23
participants and does not necessarily reflect any official position of the District, its Board,

administration, or employees, or indicate the views of any other graduates.” More to the

point, the second paragraph of the printed Disclaimer avows that any religious expression

by students is not endorsed by the School District and then goes on to clarify that

individuals “have the freedom to express their individual political, social or religious

views, for this is the essence of education.” Under these circumstances, there is no real

likelihood Griffith’s passing religious references in her valedictory speech would have

been construed by any in attendance as an endorsement of religious views by the School

District.

¶56 Finally, the School District violated its own written policies of non-censorship

when it prohibited Griffith from giving her chosen remarks. Policy No. 2333, which

explicitly addresses content for graduation speeches, states “the school administration

shall not censor any presentation or require any content” and that students who are

selected to speak may choose to deliver “an address, poem, reading, song, musical

presentation, prayer or any other pronouncement of their choosing.” The School District

ignored this policy by requiring Griffith to remove the words “God” and “Christ” from

her speech.

¶57 For the aforementioned reasons, we reach a narrow holding based on the particular

facts of this case. We hold that the School District violated Griffith’s right to freedom of

speech under the First Amendment of the United States Constitution when it

24
impermissibly censored the content of her valedictory speech based on the viewpoint she

expressed.

B. Griffith is entitled to relief under 42 U.S.C. § 1983 because the School District, a
governmental entity, violated her constitutional right to free speech

¶58 Since we find that School District deprived Griffith of a federal constitutional

right, she is entitled to seek relief under 42 U.S.C. § 1983 (§ 1983). “Section 1983 ‘is not

itself a source of substantive rights, but merely provides a method for vindicating federal

rights elsewhere conferred.’ ” Jones v. Mont. Univ. Sys. 2007 MT 82, ¶ 32, 337 Mont. 1,

155 P.3d 1247 (quoting Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 811

(1994)). To evaluate a § 1983 claim, the first step is to identify the specific federal

constitutional violation, and the second step is to determine whether the officials who

violated a plaintiff’s constitutional rights were acting under the color of state law. Brown

v. McDonald, 2007 MT 197, ¶ 12, 338 Mont. 390, 165 P.3d 1125 (citations omitted).

¶59 Griffith satisfies the first part of the § 1983 analysis because her federal

constitutional right to free speech, as guaranteed by the First Amendment, was violated

when she was prohibited from delivering her valedictory speech. Supra ¶ 57. We

conclude that the second part of the analysis is satisfied as well. The School District is a

government entity. Sections 2-9-101(3) and (5), MCA. During the 2007–2008 academic

year, Uggetti and Metz, as employees of the School District, were acting in their official

capacities as School District superintendent and BHS principal, respectively. Section

2-9-101(2)(a), MCA. The constitutional violation occurred when Uggetti and Metz

25
precluded Griffith from delivering her chosen remarks at the graduation ceremony. It is

undisputed that this was done during the course and scope of their employment as school

officials. Because the School District, through the actions of Uggetti and Metz, violated

her First Amendment right to free speech, Griffith is entitled to relief under her § 1983

claim.

¶60 The District Court did not reach the question of whether Uggetti and Metz as

individually-named defendants, are individually liable for their actions against Griffith.

We conclude they are not and they should be dismissed from the action. Section

2-9-305(5), MCA, serves as a complete bar to holding Uggetti and Metz individually

liable because it provides immunity from suit to individually-named defendants for

actions performed within the course and scope of the official’s employment. See Kiely

Constr., LLC v. City of Red Lodge, 2002 MT 241, ¶¶ 88-89, 312 Mont. 52, 57 P.3d 836;

see also Germann v. Stephens, 2006 MT 130, ¶ 55, 332 Mont. 303, 137 P.3d 545 (in a

§ 1983 claim, granting immunity to government officials does not deprive plaintiffs of a

remedy against the government entity). All of Griffith’s allegations turn on actions

performed by Uggetti and Metz, as school officials, in the course and scope of their

employment. On remand, we instruct the District Court to dismiss Uggetti and Metz as

individual defendants pursuant to § 2-9-305(5), MCA.

C. The School District did not violate Griffith’s state and federal constitutional
right to freedom of religion because it neither compelled Griffith to violate the
tenets of her religion nor denied her an important governmental benefit

26
¶61 Griffith argues that the School District infringed on her right to free exercise of

religion in violation of Article II, Section 5 of the Montana Constitution and the First

Amendment of the United States Constitution. She claims the School District unduly

burdened her religious practice when it prohibited her from saying “God” and “Christ” in

her valedictory speech. The School District argues that Griffith has not demonstrated that

her religious beliefs mandate she include personal religious expression in her valedictory

speech, nor has she shown that her religious beliefs proscribe delivery of a valedictory

speech free of personal religious expression. On this issue, we agree with the School

District.

¶62 “A facially neutral regulation impermissibly infringes on the constitutional

requirement of government neutrality if it unduly burdens the free exercise of religion.”

Valley Christian Sch. v. Montana High Sch. Assoc., 2004 MT 41, ¶ 7, 320 Mont. 81, 86

P.3d 554 (citing Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S. Ct. 1526, 1536 (1972)). To

determine whether there is a burden on the free exercise of religion, this Court adopted

the Thomas test established by the United States Supreme Court:

Where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of
conduct mandated by religious belief, thereby putting substantial pressure
on an adherent to modify his behavior and to violate his beliefs, a burden
upon religion exists.

Id. (quoting Thomas v. Review Bd. of Indiana Empl. Sec. Div., 450 U.S. 707, 717-18, 101

S. Ct. 1425, 1432 (1981)).

¶63 The first part of the analysis under the Thomas test is to determine whether being

permitted to deliver a valedictory speech at a high school graduation ceremony is an

27
important benefit. A benefit is an “advantage or privilege.” Black’s Law Dictionary 166

(Bryan A. Garner ed., 8th ed., West 2004). We have previously recognized student

participation in extracurricular activities as an important benefit. Valley Christian

School, ¶ 8 (citing State ex. Rel. Bartmess v. Bd. of Trustees [sic], 223 Mont. 269, 275,

726 P.2d 801, 804 (1986)). A student’s invitation to deliver a valedictory speech is an

honor conferred on the student based on the student’s academic success throughout high

school. An academic award is a privilege and is certainly analogous to the privilege of

participating in extracurricular activities. It follows that delivering a valedictory speech

is an important benefit.

¶64 The second part of the Thomas analysis focuses on whether Griffith’s conduct—

expressing her personal religious views in her valedictory speech—was “proscribed by a

religious faith” or “mandated by a religious belief.” Valley Christian School, ¶ 7.

Nothing before this Court indicates either that Griffith’s religious faith mandates she

include personal religious expressions in a speech or that her faith proscribes delivering a

speech devoid of personal religious expression. Griffith’s personal belief that she could

not speak without mention of God and Christ during her speech is not equivalent to a

mandate by her religious faith that she do so.

¶65 Therefore, Griffith cannot meet the second prong on the Thomas test because she

cannot demonstrate that the School District’s request that she omit “God” and “Christ”

from her speech is incompatible with the tenets of her religious faith. Griffith has not

shown that the School District unduly burdened her free exercise of religion when it

conditioned the delivery of her valedictory speech on omitting “God” and “Christ” from

28
the text. We hold the School District did not violate Griffith’s constitutional right to

freedom of religion.

D. Griffith may be entitled to an award of attorney fees because she is the prevailing
party under her 42 U.S.C. § 1983 claim

¶66 A prevailing party in a § 1983 claim may be awarded reasonable attorney fees as

part of the costs pursuant to 42 U.S.C. § 1988(b). Germann, ¶ 37. While the power of a

court to award attorney fees under 42 U.S.C. § 1988(b) is discretionary, “a prevailing

plaintiff in a § 1983 claim should ordinarily recover an attorney’s fee ‘unless special

circumstances would render such an award unjust.’ ” Kiely, ¶ 50 (citation omitted). A

party is considered to “prevail when actual relief on the merits of [the plaintiff’s] claim

materially alters the legal relationship between the parties by modifying the defendant’s

behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103,

111-12, 113 S. Ct. 566, 573 (1992). “A plaintiff who wins nominal damages is a

prevailing party under § 1988” because an award of damages, in any amount, changes the

legal relationship in favor of the plaintiff “by forcing the defendant to pay an amount of

money [the defendant] otherwise would not pay.” Id. at 112-13, 113 S. Ct. at 573-74.

¶67 Pursuant to the foregoing statutory law and caselaw, Griffith may be entitled to an

award of attorney fees since we conclude she is the prevailing party. Supra ¶ 57. We

instruct the District Court to determine whether to award attorney fees under the law, and

if so, to conduct a hearing on the amount.

CONCLUSION

29
¶68 In sum, we hold Griffith’s constitutional claims were not barred by the exclusivity

provisions of the MHRA and that the School District violated Griffith’s First Amendment

right to free speech. Furthermore, we reverse and remand for entry of summary judgment

in Griffith’s favor, consistent with this Opinion. We remand for a determination (1) of

the amount of damages to which Griffith is entitled under 42 U.S.C. § 1983; and (2) of

whether Griffith is entitled to attorney fees, and, if so, for a hearing and determination of

the amount.

¶69 We reverse and remand consistent with this Opinion.

/S/ PATRICIA COTTER

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE

Justice W. William Leaphart, dissenting.

30
¶70 I dissent from the Court’s resolution of issue 2(a). Having done so, I would not

reach issues 2(b) and 2(c).

¶71 First of all, I note that the Court spends considerable time discussing the School

District’s written policies; how the policies are internally inconsistent and how the

District’s suggested edits violated Policy No. 3222. If the Court were reversing due to

the District’s violation of school policy, then the policies and the District’s suggested

edits would be relevant. However, the Court’s self-described “narrow holding” is not

that the school violated the policies, but that it violated the First Amendment Right of

Free Speech. Thus the sole focus of the analysis should be: what was the content of

Griffith’s proposed speech, and did the District violate her right of free speech in not

allowing her to deliver the speech as proposed?

¶72 Renee Griffith’s proposed valedictory speech contained two references to God and

one reference to Christ. She proposed to say that “I can say that my regrets are few and

far between. I didn’t let fear keep me from sharing Christ and His Joy with those around

me.” (Emphasis added.) The Court holds that this was not proselytizing, and that not

allowing Griffith to speak was viewpoint discrimination of protected free speech. I

disagree.

¶73 Initially, I question whether proselytizing is an accurate litmus test of

Establishment Clause violations. Although the Ninth Circuit repeatedly referred to

impermissible speech in Cole v. Oroville Union High Sch., 228 F.3d 1092, 1104 (9th Cir.

2000), as proselytizing, the decisions in Lee v. Weisman, 505 U.S. 577, 587-90, 112 S.

Ct. 2649, 2655-57 (1992), and Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305-310,

31
120 S. Ct. 2266, 2276-79 (2002) make clear that the religious involvement need not be

proselytizing or even sectarian in order to be considered impermissible under the

Establishment Clause. The invocation in Lee was decidedly non-sectarian, as was the

prayer in Santa Fe, yet both were found to violate the Establishment Clause. As a legal

matter, proselytizing speech will almost certainly trigger Establishment Clause concerns.

This does not mean, however, that speech must be proselytizing to be found

constitutionally impermissible. Sectarian religious references short of proselytizing may

suffice. Nonetheless, assuming arguendo that proselytizing is the proper test, Griffith’s

proposed speech tests positive.

¶74 In seeking to “[share] Christ and His Joy with those around” her, Griffith was

seeking to induce others to join her religious faith. That is, she was proselytizing.

Proselytizing speech is speech that “[is], by definition . . . designed to reflect, and even

convert others to, a particular religious viewpoint . . . .” Doe v. Santa Fe Indep. Sch.

Dist., 168 F.3d 806, 817 (5th Cir. 1999). To proselytize is “[t]o induce someone to

convert to one’s own religious faith.” American Heritage Dictionary 1454 (3rd ed.,

Houghton 1992). Even if Griffith’s speech is not perceived as proselytizing, it illustrates

the impossibility of having school administrators make such arbitrary determinations in

the face of the Establishment Clause.

¶75 The critical inquiry under Santa Fe and Lee to determine if religious activity at a

major public school event constitutes impermissible coercion to participate is whether “a

reasonable dissenter . . . could believe that the group exercise signified her own

participation or approval of it.” Lee, 505 U.S. at 593, 112 S. Ct. at 2658. The court here

32
reasons that Griffith’s three references to God or Christ were not proselytizing because

she prefaced each reference with “I learned” or “my faith;” that she did not once use the

term “we” or “you.” This analysis overlooks that Griffith expressly sought to “share

Christ and His Joy with those around her.” “Sharing” is not a solitary endeavor. Rather,

sharing is to enjoy or experience jointly with another or others. American Heritage

Dictionary at 1659. “Those around her” were the hundreds of people in the captive

audience. They were the “we” and the “you” the Court overlooks.

¶76 In the present case, the purpose to be served by this gathering was to conduct a

graduation ceremony, not to share a sectarian religious experience. The District had a

legitimate interest in complying with the Establishment Clause by not lending its

imprimatur to expressions of religious belief at the ceremony. Contrary to this Court’s

conclusion, it was not Griffith’s religious viewpoint the District sought to exclude, but

any sectarian religious content in general.

¶77 Griffith cites a number of cases in support of her free speech claim. These cases,

however, are clearly distinguishable from a school sponsored graduation ceremony.

Griffith cites Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 393,

113 S. Ct. 2141, 2147 (1993), for the proposition that “a school district could not permit

school property to be used for the presentation of all views about family issues and child

rearing except those dealing with the subject matter from a religious perspective,” and

Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 831, 115 S. Ct. 2510,

2517 (1995), for the proposition that a university could not refuse to fund a student

publication because it addressed issues from a religious perspective. Finally, she cites

33
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107-09, 121 S. Ct. 2093, 2100-01

(2001), for the proposition that “the Court found viewpoint discrimination where a public

school permitted nonreligious groups to meet on school property after school but

prohibited a Christian club from doing so.”

¶78 The above decisions are all clearly distinguishable. They each involve voluntary

participation. When a Christian Club uses school property as a meeting place, no one is

required to attend; the public is free to participate or not. Likewise, when school property

is used for the discussion of family issues and child rearing, whether from a religious

viewpoint or not, no one is compelled to attend. A high school graduation ceremony,

however, is an entirely different matter. Unlike after-hours meetings in Good News Club

which lacked the imprimatur of the school, the “essence of graduation is to place the

school’s imprimatur on the ceremony—including the student speakers that the school

selected.” Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 985 (9th Cir. 2003),

cert. denied, 540 U.S. 817, 124 S. Ct. 78 (2003). High school graduation is one of life’s

more significant events. Attendance at high school graduation is compulsory. The

speakers chosen by the school clearly have a “captive” audience. The student body of a

public school is presumably very diverse with a mix of Christians, Jews, Muslims,

atheists, and agnostics, many of whom would resent being required to attend a ceremony

in which Christ and His Joy was being shared with those present in the captive audience.

As the Court acknowledged in Lee, our society recognizes that even simply standing or

remaining silent can signify adherence to the views of others. Lee, 505 U.S. at 593,

34
112 S. Ct. at 2658. Accordingly, a reasonable dissenter could certainly feel that his/her

silence signified approval or participation in this public sharing of Christ and His Joy.

¶79 The Court here reasons that the school, through a disclaimer in the graduation

program, made it clear that it was not sponsoring the speech. The disclaimer, although it

may have alleviated concerns of school “sponsorship” or “entanglement,” does not

address the coercive effect on dissenters. In Lee, the Court held that a school district

violated the Establishment Clause when it invited a rabbi to deliver a nonsectarian,

nonproselytizing prayer at its graduation ceremony. The Court noted the singular

importance of a high school graduation as a once-in-a-lifetime event and the

susceptibility of adolescents to peer and social pressure. This left a dissenting student

with the unduly coercive dilemma of participating in the prayer against her conscience or

missing her own high school graduation. Because this dilemma gave the dissenting

students no legitimate alternative to attending their graduation, the Court concluded the

school district had in effect compelled participation in an explicit religious exercise. Id.

at 593-94, 112 S. Ct. at 2658-59. The dissenting students in Griffith’s class were in the

same untenable dilemma. They were part of a captive audience and had to choose

between attending the ceremony and turning the other way when the speaker sought to

“share Christ and His Joy” or not attending their high school graduation.

¶80 Although Griffith’s speech was not as blatant in its proselytizing as the speech the

Court uses for contrast from Cole, it graphically illustrates the impracticality of having

school administrators walk this Constitutional tightrope. What if three of four

valedictorians made personal references to Christ or one speaker made five references to

35
Christ? What if a speaker used ten references to “sharing the joy of Allah,” would that be

free speech or proselytizing? The question is answered in the asking. The line drawing

will necessarily be subjective depending upon the administrator. The point being that

school districts have a constitutional obligation to avoid violating the Establishment

Clause. Santa Fe, 530 U.S. at 301-02, 120 S. Ct. at 2275. In honoring that obligation,

school districts are entitled to a degree of latitude. The proper test is not whether the

speech in question would be constitutionally permissible; rather, it is whether the District

“acted reasonably to avoid violating the Establishment Clause.” Cole, 228 F.3d at 1105.

There is “no doubt that compliance with the Establishment Clause is a state interest

sufficiently compelling to justify content-based restrictions on speech.” Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-62, 115 S. Ct. 2440, 2446 (1995).

Here the District was not engaging in viewpoint discrimination. In demanding that there

be no sectarian religious references, it was properly imposing content-based restrictions.

It had no other means of preventing the coerced participation in this “sharing” of a

sectarian religious experience. See Lassonde, 320 F.3d at 984. The Butte School District

did not act unreasonably.

¶81 I would affirm the decision of the District Court.

/S/ W. WILLIAM LEAPHART

36
37