Prayer during high school graduation remains contentious battle

Tuesday, May 19, 1998

More than 30 years after the Supreme Court ruled that compulsory, school- sponsored prayer was an affront to the First Amendment, public school administrators are still struggling over the proper place for religious expression at graduation ceremonies.

The confusion stems from the fact that some religious liberty scholars and conservative Christian groups suggest that the Supreme Court and lower federal courts have differentiated between school-sponsored graduation ceremonies and student-led graduation ceremonies.

In 1992, the Supreme Court in Lee v. Weisman struck down Rhode Island laws that permitted public school principals to invite clergy members to give invocations and benedictions at middle school or high school graduation ceremonies.

Although it is a given that the First Amendment requires government to accommodate the free exercise of religion, it is also well settled that such accommodation cannot violate the establishment clause. As Justice Anthony Kennedy pointed out in Lee, the establishment clause imposes fundamental limitations to prevent government from “establishing” a religion.

“It is beyond dispute that, at a minimum, the 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,'” Kennedy wrote.

Rhode Island permitted state representatives — the public high and middle school principals — to create and force upon graduating students a religious ceremony.

“State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools,” Kennedy noted. “Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are, in a fair and real sense, obligatory, though the school district does not require attendance as a condition for receipt of the diploma.

“The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State, and thus put school-age children who objected in an untenable position,” Kennedy wrote.

Because of the pervasive nature of the government's involvement in a religious exercise in public schools, Kennedy had no choice but to invalidate the law.

According to some religious conservative groups, such as the Christian Coalition, a federal court case in the Fifth Circuit, applicable only in Texas, Mississippi and Louisiana, suggests the Supreme Court's decision in Lee should not be read broadly.

Jay Sekulow, chief counsel for the American Center for Law and Justice, the legal arm of the Christian Coalition, claims — despite the Lee ruling — that public school officials may permit prayer at graduation. Sekulow justifies his claim by arguing that Lee was a narrow ruling that would not affect voluntary, student-initiated prayer during graduation ceremonies and by pointing to the Fifth Circuit's decision in Jones v. Clear Creek Independent School Dist.

“Quite unlike the school-directed and school-controlled practice found unconstitutional in Lee, the Clear Creek Independent School District's resolution simply permits the students of each graduating class to decide if they do or do not wish to have an invocation as a part of their commencement,” Sekulow said.

The Fifth Circuit decision, Sekulow notes, was reached shortly after Lee. It held that: “The practical result of our decision, viewed in light of Lee, is that a majority of students can do what the State acting on its own cannot do to incorporate prayer in public high school graduation ceremonies.”

Is prayer permissible at public school graduation ceremonies simply because a majority of students vote to include prayer? The court in Jones and Sekulow apparently believe so.

Other courts and religious liberty advocates, however, question whether there is such a thing as voluntary prayer at a public high school graduation ceremony.

In 1995 a federal appeals court for the Third Circuit — covering New Jersey, Delaware and Pennsylvania — ruled that student-initiated and student-led prayer at graduation ceremonies remains an affront to the separation of church and state because such ceremonies are nonetheless school-sponsored events under the control of school officials.

A Pennsylvania school district created a policy that allowed students to decide if the graduation ceremony would include prayer and, if so, the form of the prayer. The Third Circuit, in ACLU v. Black Horse Pike Regional Board of Education, ruled that despite the district's policy it could not abdicate its duties to the students and therefore Lee's interpretation of the First Amendment should be followed.

“We cannot allow the school district's delegate to make decisions that the school district cannot make,” the court stated. “When the senior class is given plenary power over a state-sponsored, state-controlled event such as high school graduation, it is just as constrained by the Constitution as the state would be.”

Joseph Conn, director of communications for Americans United for Separation of Church and State, a nonprofit religious-rights group, said that the Lee decision should be closely adhered to by the country's public school officials.

“The Jones decision is simply a mistake,” Conn said. “There certainly can be no such thing as student-initiated and-led prayer when the students are gathered for graduation under the aegis of the public schools. The bottom line from the Lee decision is that you cannot force students to worship in order to get their diploma.”

The director of communications for the Christian Coalition, however, believes that Kennedy misinterpreted the First Amendment.

“Kennedy inserted his rather subjective perspective into that decision,” Arne Owens said. “Rather than erring on the side of freedom, he pressed the envelope to the point where the free exercise of religion guarantee of the First Amendment was actually reduced.”

Owens said the only way to correct Lee is for Congress and a constitutionally-mandated number of states to pass the Religious Freedom Amendment which says no government entity could stop people from acknowledging God on public property, including school property. The amendment, introduced by Rep. Ernest Istook, R-Okla., has been voted out of the House Judiciary Committee and is expected to reach a full House vote in June.

Conn responds that the coalition's understanding of the First Amendment is skewed by majoritarianism tendencies.

“We have always strongly believed that the Christian Coalition would like to have majority rule for religion in this country,” he said. “Because there is a Christian majority in this country, the coalition believes those practices should be the norm in the public square. That is very unfair in a religiously diverse country.”

Conn said the best way for public school officials to respect religious diversity during graduation ceremonies is to leave religious worship out of the equation.

J. Brent Walker, general counsel for the Baptist Joint Committee, agrees.

“Think about it,” Walker said. “It makes good sense. To disallow public prayer at graduation ceremony doesn't keep a single person from praying. Every person in the auditorium or stadium can pray silently, incessantly, fervently for the well-being and good fortune of the graduating class, each in his or her own way.”