Running head: CASE SCENARIO #5

SDAD 580, Higher Education Law

November 19th, 2013
Case Scenario #5
Amy Clawson

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The problems that arise within this case lead back to the establishment clause and the
need for public institutions to act in a non-sectarian manner. As the vice president for student
affairs, I will utilize the endorsement test put forth by Lynch v. Donnelly to examine the problems
regarding the establishment clause. First off, I would like to provide a brief statement about the
constitutional rights under the establishment clause. Under the establishment clause of the First
Amendment, public institutions must maintain a neutral stance regarding religious beliefs and
activities; they must, in other words, maintain religious neutrality (Kaplin, 2009). It is important
to note that this statement was kept in mind upon examination of the facts.
The endorsement test, modified from the Lemon test, was explained in Lynch v. Donnelly
as the government impermissibly endorses religion if its conduct has either (1) the purpose or
(2) the effect of conveying a message that religion or a particular religious belief is favored or
preferred. In reference to the first prong of the endorsement test, it is important to look at the
overall purpose of the activity happening at the basketball game. The original purpose of the
religious signs may not have been to show favoritism towards a particular religion, but this is
what ultimately happened. Christianity was openly endorsed with the cheer-squads activities and
spread with the support of the pep band, and spread again once donors began showing their
support and pleasure with the addition of religious activity at the games.
The University of Bliss is a public institution, which means they should act in a secular
nature that is inclusive to all. I will use the secular nature of the institution to explain the second
prong of the endorsement test. The Muslim student, Alleyah, was denied in her request to
provide a scripture verse from the Quran during the game. Furthermore, the fact that Atilla,
who does not attend the basketball games, is aware and upset about this shows that a normal
observer would notice that activity at the basketball games promotes and favors Christianity.

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Also, the signs have been taken a step further by being posted around the gym, which is a public
place ultimately operated by the government. The wider community is also showing support for
the renewed religiosity on campus, this is a problem because the institution should not be
affiliated with supporting one specific religion. The donors who would like to build the Western
Christian Religions building on campus increases the institutions appearance of fully supporting
Christianity. This breaks the neutrality that is necessary for the institution to uphold. Santa Fe
Independent School Dist. v. Doe mentions a passage from Board of Regents of Univ. of Wis.
System v. Southworth, 529 U.S. 217: the whole theory of viewpoint neutrality is that minority
views are treated with the same respect as are majority views. The University of Bliss is not
keeping up with viewpoint neutrality because the minority religious views are not given the same
respect as the majority religious views on campus.
Next, I would like to mention that the cheer-squad is fully funded by the institution and
employees acting on behalf of the state specifically select the participants. Because the
institution receives government funding and the cheer-squad is receiving benefit from the
relationship, the members of the cheer-team are no longer acting as private citizens. This means
their freedom of speech is somewhat limited, speech limitation encompasses the scripture
passages, religious cheers, and signs; all of these things should remain neutral.
A counterargument that may present itself is within Windmar v. Vincent; the Supreme
Court in this case decided, student religious activities on public campuses are protected by the
First Amendment free speech clause (Kaplin, 2009). I would reject this counterargument based
on the fact that another student was denied in her request to use a scripture passage from the
Quran. The members of the cheer-squad may very well argue their free speech rights, but the

CASE SCENARIO #5

fact that one student was unable to express her religious views changes things. If one religious
activity is allowed, then activities that represent different religious views should also be allowed.
As mentioned earlier, the members of the cheer-squad are acting as representatives of the
University of Bliss, which means they are no longer acting as private citizens. Another
counterargument that may arise is the idea of a captive audience. It may be said that the audience
has a choice to avert their eyes or leave the arena during basketball games if they do not wish to
be a part of the religious cheering. The problem with this argument is that one of the basketball
players, Harpreet, is not allowed to just walk away when he feels uncomfortable because he is a
prominent member of the team and has an obligation to be at every game. Harpreet can be
considered a captive audience, which changes the nature of the counterargument.
Overall, I think that the president must take a look at the establishment clause and the
limitations this imposes for a public institution. The president needs to keep in mind the issues
raised by the endorsement test and what this means for allowing religious activity in the
basketball arena. Inclusiveness is an important issue on campuses; the university must not show
favoritism towards a specific religion even if it means not gaining extra support from donors.
The university has a duty to abide by the constitution and remain neutral where religion is
concerned.