The Second Circuit’s Establishment Clause Jurisprudence of Desire

The Second Circuit has upheld the decision of a public school to forbid a student from closing a middle school speech with the following: “As we say our goodbyes and leave middle school behind, I say to you, may the Lord bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.”  The student sued on free speech grounds, and the court concluded that though the restriction was content-based, because the standard in public schools is deferential to the school (“reasonably related to legitimate pedagogical concerns”), and notwithstanding the school’s need to come up with an “overriding” state interest, the school had done so here.

What was that “overriding” state interest “reasonably related to legitimate pedagogical concerns”?  It was the school’s “desire to avoid violating the Establishment Clause.”  But this was a student’s own decision, uninfluenced by the school (indeed, opposed by the school).  That did not matter.  So long as the government “desires” to avoid an Establishment Clause violation — whether the “desire” corresponds with what the Establishment Clause actually proscribes or not – that is sufficient to overcome what might otherwise be an actual violation of a constitutional right (irrespective, I take it, of anybody’s desires).  But desires are tricky.  People desire all sorts of things; sometimes those desires are constitutional, sometimes not, but I can’t think of another context in which a constitutional dispute really depends so heavily on the desires of one of the parties, whether or not those desires correspond to actual realities.  But why not be more forthright?  This decision has nothing to do with the Establishment Clause.  It has to do with the school’s desire not to permit the religious language of the student’s speech.  So why is it necessary to bloat the Establishment Clause this way?  But the endorsement test put us on the path of Establishment Clause “desires” and “appearances” long ago.

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